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Developing the South African law of delict: the creation of a statutory

compensation fund for crime victims
Albertus Bernardus Wessels
Dissertation presented for the degree of Doctor of Laws in the Faculty of Law
at Stellenbosch University
Supervisors: Professor Max Loubser and Professor Jacques du Plessis
March 2018
Stellenbosch University https://scholar.sun.ac.za
DECLARATION
By submitting this dissertation electronically, I declare that the entirety of the work
contained therein is my own, original work, that I am the sole author thereof (save to
the extent explicitly otherwise stated), that reproduction and publication thereof by
Stellenbosch University will not infringe any third party rights and that I have not
previously in its entirety or in part submitted it for obtaining any qualification.
Albertus Bernardus Wessels
March 2018
Copyright © 2018 Stellenbosch University
All rights reserved

SUMMARY
The dissertation evaluates the compensatory relief South African law currently
provides to victims of crime. To obtain compensation for the harm arising from crime,
a victim may institute a common-law delictual claim against the perpetrator of the
crime. Because the perpetrator is unlikely to be in a financial position to compensate
the victim’s harm, crime victims frequently frame actions against the state, not only on
the basis of vicarious liability for positive wrongdoing by state employees, but
increasingly on the basis of failure by the state or its employees to prevent crime. This
dissertation describes the expanding delictual liability of the state for harm caused by
crime and concludes that this development of the law of delict is both theoretically and
practically undesirable. The dissertation further argues that the existing statutory
mechanisms to claim compensation for harm arising from crime is unsatisfactory and
provides little assistance to crime victims.
Within this framework the dissertation considers whether there is an alternative

method to secure compensation for the hundreds of thousands of South Africans who
fall victim to crime each year. The most common solution adopted in foreign
jurisdictions is the establishment of a statutory compensation fund for crime victims.
The dissertation seeks to establish whether the legislative reform of the South African
law of delict through the creation of such a fund is justified and appropriate.
To do so, the dissertation analyses the historical background and policy bases of other
significant instances of legislative reform of the South African law of delict. In the
process, a general theoretical framework is developed that may provide an outline for
statutory reform of the law of delict to provide compensation for specific categories of
victims.
The dissertation thereafter examines whether the establishment of a statutory crime

victim compensation fund could fit within this proposed theoretical framework. It is
concluded that the proposed fund is justifiable and, when compared to the solutions
offered by the current developments within the common-law of delict and existing
legislation, it seems, in principle, to be a more desirable solution to improve the legal
position regarding compensation of crime victims.
To be successful, the proposed statutory compensation scheme must be theoretically

sound and practically workable. The dissertation therefore concludes by focusing on
several practical questions and considerations which the South African legislature
should take into account, if it were to enact such a scheme.
OPSOMMING
Die verhandeling evalueer die wyse waarop die Suid-Afrikaanse regstelsel tans
vergoeding bied aan die slagoffers van misdaad. Om die skade voortspruitend uit
misdaad te vergoed, kan ŉ slagoffer ŉ gemeenregtelike deliktuele eis teen die
oortreder instel. Aangesien dit onwaarskynlik is dat die oortreder in 'n finansiële posisie
sal wees om die slagoffer se skade te vergoed, stel misdaadslagoffers gereeld eise in
teen die staat, nie bloot op die basis van middellike aanspreeklikheid vir positiewe
delikte van staatswerknemers nie, maar toenemend op grond van die versuim van die
staat of sy werknemers om misdaad te voorkom. Die proefskrif beskryf die uitbreiding
van die deliktuele aanspreeklikheid van die staat vir skade veroorsaak deur misdaad
en kom tot die gevolgtrekking dat hierdie ontwikkeling van die deliktereg sowel
teoreties as prakties onwenslik is. Die verhandeling argumenteer verder dat die
bestaande statutêre meganismes om vergoeding te eis vir skade wat uit misdaad
ontstaan onbevredigend is en min bystand verleen aan misdaadslagoffers.
Binne hierdie raamwerk word dit oorweeg of daar ŉ alternatiewe metode is om

vergoeding te verseker vir die honderde duisende Suid-Afrikaners wat elke jaar
slagoffers van misdaad is. Die mees algemene oplossing wat in buitelandse
jurisdiksies toegepas word, is die vestiging van ŉ statutêre vergoedingsfonds vir
misdaadslagoffers. Die verhandeling beoog om vas te stel of die wetgewende
ontwikkeling van die Suid-Afrikaanse deliktereg deur die skepping van ŉ
vergoedingsfonds vir misdaadslagoffers geregverdig en gepas is.
Om dit te doen, ontleed die proefskrif die historiese agtergrond en beleidsbasis van
ander belangrike voorbeelde van wetgewende hervorming van die Suid-Afrikaanse
deliktereg. In die proses word ŉ algemene teoretiese raamwerk ontwikkel wat ŉ basis
kan bied vir statutêre hervorming van die deliktereg om voorsiening te maak vir die
vergoeding van spesifieke kategorieë slagoffers.
Die verhandeling ondersoek dan of die vestiging van ŉ statutêre

misdaadslagoffervergoedingsfonds binne hierdie voorgestelde teoretiese raamwerk
kan pas. Daar word tot die gevolgtrekking gekom dat die voorgestelde fonds
geregverdig kan word en dit wil voorkom asof die vestiging van sodanige fonds, in
vergelyking met die oplossings wat gebied word deur die huidige ontwikkeling in die
deliktereg en bestaande wetgewing, in beginsel, ŉ meer wenslike oplossing is om die
regsposisie met betrekking tot skadevergoeding van misdaadslagoffers te verbeter.
Ten einde suksesvol te wees, moet die voorgestelde statutêre vergoedingskema

teoreties gegrond en prakties werkbaar wees. Die proefskrif sluit dus af deur te fokus
op verskeie praktiese vrae en oorwegings wat die Suid-Afrikaanse wetgewer in ag
behoort te neem as die voorgestelde vergoedingskema vir misdaadslagoffers
inderdaad geskep sou word.
ACKNOWLEDGMENTS
I would like to express my sincere thanks and appreciation to my supervisors,

Professor Max Loubser and Professor Jacques du Plessis, for their valuable guidance
and scholarly inputs. Without their direction and feedback, this dissertation would not
have been achievable.
I am also grateful to my parents, Francois and Adré Wessels. They have supported
and encouraged me in all my pursuits and motivated me in the writing of this
dissertation. Thank you also to the rest of my family and all my friends, for your love
and friendship.
Finally, thank you to my wife, Catrina, who has endured the presence of this
dissertation in our life, and who has been a source of inspiration and motivation in this
journey. She has been very supportive and patient and her contribution to the
successful completion of this dissertation is fondly acknowledged.
INDEX
1. INTRODUCTION………………………………………………………………….8
2. A DESCRIPTION AND EVALUATION OF THE CURRENT
SOUTH AFRICAN LEGAL POSITION REGARDING THE
COMPENSATION OF HARM SUFFERED BY CRIME VICTIMS …………..31
3. LEGAL AND PUBLIC POLICY CONSIDERATIONS

THAT JUSTIFY LEGISLATIVE DEVELOPMENT OF THE LAW
OF DELICT………………………………………………………………………..127
4. JUSTIFYING THE LEGISLATIVE DEVELOPMENT OF

THE LAW OF DELICT BY ESTABLISHING
A STATUTORY COMPENSATION FUND FOR CRIME VICTIMS………...189
5. PRACTICAL CONSIDERATIONS THAT ARE RELEVANT

WHEN DEVELOPING A STATUTORY COMPENSATION FUND
FOR CRIME VICTIMS…………………………………………………………...239
6. CONCLUSIONS……………………………………………………………….....326
7. BIBLIOGRAPHY………………………………………………………………....339
CHAPTER 1: INTRODUCTION
1.1 Setting the scene: a crime epidemic and the need for an appropriate
legal response……………………………………………………………….……….10
1.2 The need for crime victim compensation…………………………………………..13
1.3 The compensation of crime victims in the South African legal system:
a brief overview………………………………………………………………………14
1.4 The expansion of state delictual liability for harm arising from crime……………15
1.5 Investigating alternative methods to secure crime victim compensation……….19
1.6 Research questions………………………………………………………………….21
1.7 Relevance of the research questions………………………………………………22
1.8 Differences between this dissertation and earlier research on the
establishment of a statutory compensation fund for crime
victims in South Africa……………………………………………………………….24
1.9 Structure of this dissertation
1.9.1 Chapter 2: A description and evaluation of the current South
African legal position regarding the compensation of harm
suffered by crime victims…………………………………………………….26

1.9.2 Chapter 3: Legal and public policy considerations that justify
legislative development of the law of delict ……………………………….27
1.9.3 Chapter 4: Justifying the legislative development of the law of delict
by establishing a statutory compensation fund for crime victims ………..28
1.9.4 Chapter 5: Practical considerations that are relevant when developing
a statutory compensation fund for crime victims…………………………..29
1.9.5 Chapter 6: Conclusions……………………………………………………...29

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CHAPTER 1: INTRODUCTION
1.1 Setting the scene: a crime epidemic and the need for an appropriate legal
response
South Africa is plagued by crime. 1 Violent crime, in particular, has reached epidemic
proportions. The most striking crime statistics are unequivocal. South Africa has one
of the highest murder rates in the world: 34 per 100 000 members of the population
were murdered in 2015/2016, 2 with approximately 51 murders being recorded on
average per day in this period. 3 And with around 1 188 assaults committed for every
100 000 members of the population, South Africa is also considered as having one of
the highest assault rates worldwide. 4 Contrary to official statistics provided by the
South African Police Services (“SAPS”), independent research indicates that the
number of rapes that occur during the course of one year may be in the order of a half
million. 5
Some perspective on the exceedingly high levels of crime in South Africa can be
obtained by comparing crime statistics and motor vehicle accident data: the 18 673
murders that occurred in 2015-2016 6 is much higher than the 13 591 people who died
as a result of motor vehicle accidents that took place in 2015, 7 while the 182 933
assaults with the intent to do grievous bodily harm recorded in 2015-2016 8 is almost
three times more than the number of people who were seriously injured in motor
vehicle accidents in 2015 (62 520). 9
1 See paragraph 4.2.3.1 in chapter 4.

2 Africa Check “Factsheet: South Africa’s 2015/2016 crime statistics” available at <https://africa
check.org/factsheets/factsheet- south-africas-201516-crime-statistics/> (accessed on 2 June 2017).
5 Although the official SAPS crime statistics for 2015-2016 indicates that 42 596 rapes were reported to
the police, this statistic has been criticised as ignoring the considerable impact of under-reporting. See
Rape Crisis Cape Town Trust “Prevalence” available at <http://rapecrisis.org.za/rape-in-south-
africa/#prevalence> (accessed on 28 June 2017); Africa Check “Rape Statistics in South Africa: A
Guide” available at <https://africacheck.org/factsheets/guide-rape-statistics-in-south-africa/>
(accessed on 28 June 2017); the Independent Police Investigative Directorate Annual Report
2012/2013 (2013) 15-16; News24 “Rape in South Africa” available at <http://www.news24.com/
MyNews24/rape-in-south-africa-20160810> (accessed on 17 July 2017).
6 SAPS Annual Crime Report 2015/2016: Addendum to the SAPS Annual Report 2015/2016 (2016)
108.
7 Road Traffic Management Corporation (“RTMC”) The Costs of Crashes in South Africa (2016) ii.
8 SAPS Annual Crime Report 2015/2016 108.
9 RTMC The Costs of Crashes in South Africa ii.
11
It is therefore obvious that the risk of harm arising from violent crime is considerably
significant and apparently more real than the risk of harm arising from motor vehicle
accidents. For this reason it is unsurprising that a 2015 study found that, along with
unemployment, crime ranks as the top concern for South Africans, edging out
anxieties about government corruption, health care, infrastructure, quality of schools
and education, energy shortages, lack of clean drinking water and pollution. 10 The
results of that study is confirmed by a national opinion survey conducted by the
Institute for Race Relations, which requested South Africans to identify what they saw
as “the two most serious problems not yet resolved since 1994.” 11 The top two issues
identified were crime and unemployment. 12
Arguably, there are two general ways in which the law may react to the high levels of
crime in South Africa. First, the problem may be approached prospectively by asking:
what could be done to prevent crime in future? To answer this question, an analysis
of the various reasons for the escalating rate of especially violent crime may be
conducted on the basis of which practical, workable solutions could be devised to
combat crime and promote safety and security.
For example, to further crime prevention efforts, the National Cabinet adopted the
National Development Plan in 2012. It “proposes an integrated approach to resolving
the root causes of crime that involves an active citizenry and inter-related
responsibilities and co-ordinated service delivery from state and non-state actors.” 13
To give effect to this vision, the Civilian Secretariat for Police developed a White Paper
on Safety and Security in 2016. It provides, inter alia, an overarching plan for crime
prevention as well as the legislative and administrative framework required to do so. 14
Secondly, the law may respond to the crime pandemic by adopting a retrospective
approach and enquiring: if crime occurs, what should be done? Within this context,
there are broadly speaking two potential reactions to any specific crime.
10 Pew Research Center Health Care, Education Are Top Priorities in Sub-Saharan Africa (2015) 15,
28-30.
11 South African Institute for Race Relations Race Relations in South Africa: Reasons for Hope (2016)
2.
12 2.
13 Civilian Secretariat for Police (“CSP”) White Paper on Safety and Security (2016) 30-31. See also
National Planning Commission National Development Plan (2011).

14 CSP White Paper on Safety and Security 7.
12
On the one hand, criminal law may respond, which would mean that the state, on
behalf of the members of the community, would pursue the perpetrator in an attempt
to impose criminal liability: 15 the police would have to apprehend the alleged criminal,
investigate the crime and provide the public prosecutor with sufficient evidence so that
the matter may be tried. 16 If the prosecution is successful in proving the elements of
criminal liability beyond reasonable doubt, the court will sentence the criminal. 17 In the
execution of these functions, the criminal justice system strives to fulfil what is arguably
its primary function: punishment. 18 In doing so, this branch of the law aims to protect
the broader public interest. In S v Dlamini, 19 the Supreme Court of Appeal (“SCA”)
summarised this response as follows: “The main purpose and social function
of criminal proceedings are to establish the guilt of an accused person in respect
of criminal conduct so that he may be punished according to law for that conduct.”20
On the other hand, the crime victim may seek compensation for the harm he 21 suffered
as a result of the crime. This he could do by taking matters into his own hands and
instituting a common-law claim against the alleged wrongdoer. Of course, as will be
discussed in more detail in paragraphs 1.4 and 1.9.1 below, as well as paragraph 2.3
in chapter 2, the crime victim may also rely on certain existing statutory provisions to
seek compensation. However, as will be indicated in chapter 2, these provisions offer
limited assistance to crime victims.
It is trite that, to be successful with the common-law claim, the victim would have to
prove that, on a balance of probabilities, the harm he suffered was wrongfully and
culpably caused by the criminal’s conduct. In other words, a second retrospective
response to the crime epidemic may be found within the law of delict, i.e. the area of
the law that focuses its attention primarily on the compensation of harm. 22
15 See JM Burchell Principles of Criminal Law 5 ed (2016) 1-136.

16 See JJ Joubert, M Basdeo, T Geldenhuys, MG Karels, GP Kemp, JP Swanepoel, SS Terblanche &
SE van der Merwe The Criminal Procedure Handbook 12 ed (2017).
17 See Joubert et al Criminal Procedure.
18 Burchell Principles of Criminal Law 68-94. See also Fose v Minister of Safety and Security 1997 (3)
SA 786 (CC).
19 2012 (2) SACR 1 (SCA). See also Fose v Minister of Safety and Security 1997 (3) SA 786 (CC).
20 Para 55.
21 References in this dissertation to the male gender applies also the female gender and vice versa,
where applicable.
22 For overviews of the function of the law of delict, see JC Macintosh Negligence in Delict 1 ed (1926)
1; FP van den Heever Aquilian Damages in South African Law (1944) 3; RG McKerron The Law of
Delict: a Treatise on the Principles of Liability for Civil Wrongs in the Law of South Africa 7 ed (1971);
13
This dissertation does not focus on crime prevention. Rather, it adopts a retrospective
approach and focuses on questions concerning compensation for the crime victim’s
harm.
1.2 The need for crime victim compensation
It is obvious that a victim of crime may suffer extensive patrimonial and non-patrimonial
harm. For instance, it is conceivable that someone who has been raped and assaulted
may incur extensive medical costs to repair bodily injuries and continue to incur related
financial costs as medical treatment is likely to continue well after the date of injury. 23
Furthermore, the victim may suffer a loss of past income as well as a significant loss
of earning capacity. 24 The non-patrimonial harm which may be suffered could include
an infringement of physical-mental integrity (i.e. pain and suffering, loss in the
amenities of life, disfigurement, emotional shock and a shortened life-expectancy) 25
as well as an infringement of dignity26 and bodily integrity. 27
If the victim fails to obtain compensation from the criminal or another source, he will
bear the burden of the harm by himself, thereby adding further misery to the already
regrettable state of affairs brought about by the crime. This will be especially unfair
where a victim is able to prove that his harm was wrongfully and culpably caused by
the perpetrator of a heinous crime.
However, if the victim is compensated, it does not only alleviate the financial
consequences brought about by crime and provide satisfaction in respect of the non-
patrimonial harm, but also provides other benefits. For example, crime victim
compensation may be used to reduce “repeat victimization as many sexual violence
NJ van der Merwe & PJJ Olivier Die Onregmatige Daad in die Suid-Afrikaanse Reg 3 ed (1976) 1-3; J
Neethling & JM Potgieter Neethling-Visser-Potgieter Law of Delict 7 ed (2015) 3-17; JC van der Walt &
JR Midgley Principles of Delict 4 ed (2016); MM Loubser & JR Midgley (eds) The Law of Delict in South
Africa 2 ed (2012) 8-11. These authors are in agreement insofar as compensation is regarded as being
the primary function of this branch of the law.
23 JM Potgieter, L Steynberg & TB Floyd The Law of Damages 3 ed (2012) 453-462.
24 462-477.
25 497-512.
26 535-536.
27 551-552.
14
complainants can remove themselves from abusive environments, or increase their

security”. 28
In S v Seedat, 29 the appellant was convicted of raping the 58-year-old complainant, to

whom he had delivered a bedside lamp and groceries. The reasoning of the SCA in
this case will be discussed elsewhere, 30 and for present purposes it is sufficient merely
to take note of the victim’s testimony as it provides a practical illustration of the need
for crime victim compensation: 31
“Prosecutor: What sentence should be imposed on the accused?

Complainant: Other than the death penalty, I don’t think there is a fair form of punishment.
Because what he did to me, is really terrible. And that is why I have decided to take away some
of his money […]
Prosecutor: Tell me, the idea of monetary compensation, since when have you had this idea with
regard to this matter? […]
Complainant: I don’t really know when it occurred to me, [but] why should I suffer? He is going to
jail tomorrow and the day thereafter he will be released and he will walk away laughing and I will
continue to suffer […] I am getting older. My transport is pathetic. Why must I continue to struggle
if [I] could benefit from the harm which I have suffered[?]”
Against this background, and with the purpose of introducing the research questions
on which this dissertation will focus, a brief overview will now be provided of the South
African legal system’s current compensatory response to harm arising from crime.
1.3 The compensation of crime victims in the South African legal system: a
brief overview
Broadly speaking, crime victims may institute either a common-law delictual claim in
pursuit of compensation or turn towards applicable legislation in an attempt to obtain
compensation for the harm they suffered. From a delictual point of view, crime victims
may institute common-law claims against the perpetrator of a crime if they can prove
28 B Greenbaum Compensation for Victims of Sexual Violence in South Africa: A Human Rights
Approach to Remedial Criminal Compensation Provisions Unpublished Doctorate in Criminal Justice
University of Cape Town (2013) 20.
29 2017 (1) SACR 141 (SCA).
30 See paragraph 2.3.1 in chapter 2.
31 2017 (1) SACR 141 (SCA) para 25 (own translation).
15
the necessary elements of delictual liability, i.e. harm, conduct, causation,

wrongfulness and fault. 32
For obvious reasons, the successful outcome of a common-law delictual claim against
the perpetrator depends on his financial position. If he is unable to compensate the
victim, it is not worthwhile to follow this route. In this regard, research indicates that
victims generally do not institute their common-law claims because the majority of
South African perpetrators are likely to be impecunious. 33 This is also the position in
various other jurisdictions. Writing about crime victim compensation with a
comparative perspective, Miers points out that “[u]ndoubtedly the greatest obstacle to
routine compensation is the commonplace fact of the offender’s limited means.”34
The likely indigence of South African criminals presents a significant stumbling block
to securing compensation through the institution of common-law delictual remedies
against the perpetrator. 35 As a result, those who seek compensation along the
delictual path, would have to adopt a different strategy. 36
1.4 The expansion of state delictual liability for harm arising from crime
The recent past has seen crime victims develop an alternative strategy to secure
compensation. In essence, they argue that it is the state, rather than the perpetrator
of the crime, that should be held delictually liable for harm arising from crime. 37 More
specifically, crime victims have argued that the state (typically the Minister of Safety
and Security) should be held vicariously liable in delict on the basis that its employees
(normally police officers) culpably and wrongfully caused the victim’s harm, either by
action or inaction. This strategy is in all likelihood driven by the state’s deeper pockets,
32 For a summary of the available common-law delictual remedies see Loubser & Midgley (eds) The
Law of Delict 3-34 and for a discussion of the elements of delictual liability see Loubser & Midgley (eds)
The Law of Delict 45-160.
33 South African Law Reform Commission (“SALRC”) Project 82: Sentencing (A Compensation Fund
for Victims of Crime) (2004) 74.

34 D Miers “Offender and state compensation for victims of crime: Two decades of development and
change” (2014) 20(1) International Review of Victimology 145 150.

35 See paragraph 3.3.1 in chapter 3 and paragraph 4.2.3.5 in chapter 4.
16
which, compared to the probable impecuniosity of the perpetrator, provide the real
opportunity of receiving compensation. 38
As will be discussed later, this strategy has proven to be remarkably successful. 39 The
judicial development relating to the state’s delictual liability for harm arising from crime
will be evaluated later, 40 but for introductory purposes it may be noted that the
expansion of the state’s liability has occurred along two discernible paths.
In the first type of case, the crime victim has argued that the state should be held
vicariously liable because one or more of its employees was negligent in preventing
the crime victim’s harm, and that this failure wrongfully caused the victim’s harm for
the purposes of delictual liability. 41 Because the failure to prevent crime occurred while
the employee was acting within the course and scope of his duty, the state, as
employer, was held vicariously liable.
The second series of cases deal with plaintiffs who were the victims of crimes
committed by police officers (the leading cases deal with the crime of rape), and who
argued that the state, as employer, should be held vicariously liable for the harm that
was intentionally and wrongfully caused by its employees. 42 In the pioneering decision
in this context, 43 the three police-officers who gang-raped the victim were on duty,
driving a marked police vehicle and in official uniforms at the time that the rapes were
committed. Despite the fact that committing serious crimes like rape is arguably the
very antithesis of a police-officer’s employment duty, the Constitutional Court (“CC”)
nevertheless held that they were acting within the course and scope of their duty and
that their employer could be held vicariously liable. 44 In a subsequent case, 45 the
38 See paragraph 2.2.1 in chapter 2. See also A Price The Influence of Human Rights on State
Negligence Liability In England and South Africa Unpublished PhD thesis University of Cambridge
(2012) 137.
40 See paragraphs 2.2.1.1.3 and 2.2.1.2.4 in chapter 2.
41 See paragraph 2.2.1.1 in chapter 2. See also Carmichele v Minister of Safety and Security (Centre
for Applied Legal Studies Intervening) 2001 (4) SA 938 (CC); Minister of Safety and Security v
Carmichele 2004 (3) SA 305 (SCA); Minister of Safety and Security v Van Duivenboden 2002 (6) SA
431 (SCA); Van Eeden v Minister of Safety and Security 2003 (1) SA 389 (SCA); Minister of Safety and
Security v Hamilton 2004 (2) SA 216 (SCA).
42 See paragraph 2.2.1.2.3 in chapter 2. See also K v Minister of Safety and Security 2005 (3) SA 179
(SCA); K v Minister of Safety and Security 2005 (6) SA 419 (CC); Minister of Safety and Security v F
2011 (3) SA 487 (SCA); F v Minister of Safety and Security [2011] ZACC 37.
43 K v Minister of Safety and Security 2005 (6) SA 419 (CC).
44 The reasoning in this case will be evaluated in paragraph 2.2.1.2.4 in chapter 2.
45 F v Minister of Safety and Security [2011] ZACC 37.
17
police officer who raped the victim was in plainclothes, driving an unmarked vehicle
and on standby-duty at the time, but these factual dissimilarities with the earlier
decision turned out to make no practical difference and the CC again held the state
vicariously liable. 46
This judicial development of the common law of delict has led to the considerable
expansion of state delictual liability for harm arising from crime. 47 The extension of
liability of the Minister of Police (formerly known as the Minister of Safety and Security)
is reflected in a report which sets out the scope and impact of civil claims against the
SAPS. The report states that, in recent years, the SAPS have “reported a substantial
annual increase in civil claims filed for damages as a result of actions or omissions by
its officials, and an even larger increase in claims that are pending. The 2014/2015
SAPS annual report showed that pending claims stood at over R26 billion, which is
equivalent to over a third of the SAPS budget.” 48 It also asserts that between 2007/08
and 2014/15, “claims made annually against the SAPS increased by 533% if
considering the original rand value, or 313% if adjusted to the same rand value”. 49
Lastly, the report records that, in a parliamentary reply, the Minister of Police indicated
that “just under R570 million had been spent by the SAPS on legal costs relating to
civil claims between 2011/12 and 2013/14.” 50
Although much may be said about the theoretical implications of the judicial expansion
of state delictual liability, 51 it also presents a practical and financial dilemma which
presently requires emphasis: when the state employer is held vicariously liable for the
culpable wrongdoing of an employee and is ordered to pay the crime victim’s
damages, it is the taxpayer who ultimately has to bear the cost. However, if taxpayer
46 The reasoning in this case will be evaluated in paragraph 2.2.1.2.4 in chapter 2.

47 J Neethling “Die Hoogste Hof van Appèl Bevestig die Uitdyende Verantwoordelikheid van die Staat
om die Reg op die Fisies-Psigiese Integriteit in die Lig van die Grondwet te Beskerm” (2003) 4 TSAR
783 788-790; C Okpaluba & P Osode Government Liability: South Africa and the Commonwealth (2012)
16-18, 124-127; J Neethling “State (public authority) liability ex delicto (1)” (2012) 75 THRHR 622 622-
624; Loubser & Midgley (eds) The Law of Delict 264-269; Price The Influence of Human Rights 111-
139; J Neethling “South Africa” in K Oliphant (ed) The Liability of Public Authorities in Comparative
Perspective (2016) 421-463.
48 G Dereymaeker “Making sense of the numbers: civil claims against the SAPS” (2015) SA Crime
Quarterly (54) 29 29. See also L Prince “R14,6 mjd. se siviele eise teen polisie in boekjaar” (20 April
2017) available at <http://www.netwerk24.com/Nuus/Politiek/r146-mjd-se-siviele-eise-teen-polisie-in-
boekjaar-20170420> (accessed on 20 April 2017).
49 Dereymaeker (2015) SA Crime Quarterly 31.
50 34.
51 See paragraphs 2.2.1.1 and 2.2.1.2.3 in chapter 2 for a critical evaluation of the theoretical
implications of this development.

18
money is used to pay compensation, then less money is available for performing the
state’s ordinary tasks, i.e. in the case of the police, preventing crime and promoting
safety and security. 52 Of course, this decreased ability to prevent crime only serves
further to increase the likelihood of a higher crime rate and the accompanying litigation
that may be instituted against the state on the basis that they failed to prevent crime.
This means that the South African law of delict appears to be caught in a vicious cycle
of ever-expanding state delictual liability for harm arising from crime.
The common-law delictual claim is not the crime victim’s only option for compensation.
The Criminal Procedure Act 51 of 1977 provides crime victims with a degree of
procedural assistance in claiming compensation from the actual perpetrator. Section
297(1)(a)(i) of the Act allows a court to postpone the sentencing of a convicted person
for up to five years on certain conditions, including making payment of
compensation. 53 In turn, section 300 of the Act allows a court, when convicting a
person of an offence which has caused damage to, or loss of, property (including
money) belonging to another, to award the victim of the crime compensation for the
damage or loss of his property.
However, as discussed later, the potential application of the Act appears to be severely
limited in practice. 54 In addition, research has indicated that sentences of this kind is
very scarce “and the main reason for this is the lack of means of offenders.” 55
Furthermore, the Prevention of Organised Crime Act 121 of 1998 (“POCA”) seeks to
introduce measures to combat organised crime activities and provides for the recovery
of the proceeds of unlawful activities (through confiscation orders) and the civil
forfeiture of criminal assets that have been used to commit an offence (through
forfeiture orders). 56 Chapter 7 of the POCA establishes the Criminal Assets Recovery
Account (“CARA”) as a separate account in the National Revenue Fund. 57 The CARA
52 See also P Atiyah The Damages Lottery (1996) 80-81.

55 JC von Bonde Redress for Victims of Crime in South Africa: A comparison with Selected
Commonwealth Jurisdictions Unpublished LLD thesis Nelson Mandela Metropolitan University (2007)
88. See also RE Scott “Compensation for Victims of Violent Crimes: An Analysis” (1967) 8(2) William
& Mary Law Review 277 278; B Cameron “Compensation for Victims of Crime, The New Zealand
Experiment” (1963) 12 Journal of Public Law 368; M Fry “Justice for Victims” (1959) 8 Journal of Public
Law 191 192; J Goodey Compensating Victims of Violent Crime in the European Union (2003) 11.
56 A Kruger Organised Crime and Proceeds of Crime Law in South Africa 2 ed (2013) 75-151.
57 Section 63 of the POCA.
19
is funded by money derived from the fulfilment of confiscation and forfeiture orders as
well as other sources. 58
Although crime victims have received payments made possible as an indirect result of
especially forfeiture orders that have been issued under the POCA, the Act does not
provide an adequate solution to the broad issue of crime victim compensation. This
may be seen as a consequence of the fact that the Act is primarily concerned with
combating and deterring organised crime as opposed to offering a legislative solution
to the general problem of victim compensation. Also, payments made from proceeds
of unlawful activities are limited to those who suffer harm from the criminal activities
which form the focus of the POCA. This ultimately means that payments are made to
relatively few victims of organised crimes while the significant number of violent crime
victims remain without compensatory relief.
1.5 Investigating alternative methods to secure crime victim compensation
If it is assumed, for the moment, that the current legal position relating to crime victim
compensation is indeed unsatisfactory, the fundamental question arises whether an
alternative method exists to ensure the compensation of crime victims.
From a comparative legal perspective, the most popular alternative solution which has
been adopted by a wide range of jurisdictions is the establishment of a statutory
compensation fund for crime victims. 59 This solution amounts to the legislative
development of the law of delict/tort law in terms of which the compensation scheme,
58 See section 64 of the POCA: the CARA may also be funded by the balance of all moneys derived
from the execution of foreign confiscation orders as defined in the International Co-Operation in Criminal
Matters Act 75 of 1996; any property or moneys appropriated by Parliament, or paid into, or allocated
to, the account in terms of any other Act; domestic and foreign grants; any property or amount of money
received or acquired from any source; and all property or moneys transferred to the Account in terms
of this Act.
59 The European jurisdictions that have created a crime victim compensation fund include Austria,
Belgium, Bulgaria, the Czech Republic, Cyprus, Denmark, Estonia, Finland, France, Greece, Hungary,
Ireland, Italy, Latvia, Lithuania, Luxemburg, Malta, the Netherlands, Poland, Portugal, Romania,
Slovenia, Slovakia, Spain, the United Kingdom and Sweden. See D Greer (ed) Compensating Crime
Victims: a European Survey (1996). Several Australian, American and Canadian territories have also
adopted similar funds: see D McGillis & P Smith Compensating Victims of Crime: An Analysis of
American Programs (1983); National Center for Victims of Crime Repairing the Harm (2004); Canadian
Resource Center for Victims of Crime “Financial Assistance” available at <https://crcvc.ca/for-
victims/financial-assistance/> (accessed on 28 June 2017).
20
generally funded through tax-payer money, takes over the primary responsibility of
compensating crime victims.
South Africa has not enacted a crime victim compensation scheme. Arguably, this is
not because the legislature is, in principle, opposed to intervening in the law of delict
by establishing a compensatory regime for a special purpose. On the contrary, this
was done for the compensation of victims of motor vehicle accidents, occupational
injuries and diseases and defective consumer products and resulted in the enactment
of the following statutes: the Compensation for Occupational Injuries and Diseases
Act 130 of 1993 (“COIDA”), the Road Accident Fund Act 56 of 1996 (“RAF Act”), as
amended by the Road Accident Fund Amendment Act 15 of 2005 (“RAFA Act”), and
the Consumer Protection Act 68 of 2008 (“CPA”).
Clearly, the existence of several foreign crime victim compensation schemes and the
fact that the South African legislature has illustrated its willingness to develop the law
relating to the compensation of other categories of victims in the past does not by itself
provide convincing evidence to suggest that a crime victim compensation fund would
also be a workable and desirable solution in the South African context.
Indeed, intervention of this kind could amount to a profound legislative reform of the
law of delict and it would therefore require justification. Unsurprisingly, scholars have
therefore raised their concern regarding the lack of a justifiable basis for this kind of
statutory development: “the idea of selecting this group of injured and disabled people
for special treatment is not easily defensible”. 60 Academics have consequently
emphasised a “fundamental problem” 61 that confronts reformers of the law of delict/tort
law in this context, which is that “it is difficult to find a satisfactory rationale for singling
out violent-crime victims from other groups of unfortunates for special treatment by the
state.”62
Therefore, assuming that the current South African legal position relating to crime
victim compensation is indeed unsatisfactory, it would require further consideration as
60 P Cane Atiyah’s Accidents, Compensation and the Law 8 ed (2013) 303-308.

61 SALRC A Compensation Fund for Victims of Crime 182-183. See also Scott (1967) William & Mary
Law Review 281; Cane Atiyah’s Accidents 303-308.
62 SALRC A Compensation Fund for Victims of Crime 182. See also Scott (1967) William & Mary Law
Review 281; Cane Atiyah’s Accidents (2013) 303-308.

21
to whether it could be justifiable to develop the South African law of delict through
statutory intervention by enacting a scheme that is aimed at providing compensation
to a specific category of victims, i.e. those who suffer harm as a result of crime.
1.6 Research questions
Three central research questions have been identified for further investigation.
1. What is the nature of the current statutory and common-law compensatory

regimes and does the South African law provide a satisfactory solution to the
issue of crime victim compensation?
2. Assuming that crime victim compensation under South African law is

unsatisfactory, could the statutory development of the law of delict through the
enactment of a crime victim compensation scheme for a specific category of
victims (i.e. those who suffer harm as a result of crime) be justified?
3. If the statutory development of the law of delict through the enactment of a

crime victim compensation fund is justifiable, and the legislature elects to enact
such a scheme, how would such a fund work in practice and what
considerations would the legislature have to take into account in this context?
It may be noted that the title of this dissertation – “Developing the South African law of
delict: the creation of a statutory compensation fund for crime victims” – is based on
the research questions identified for investigation. It may be said that the creation of a
statutory compensation scheme is not about developing the law of delict, but rather
supplementing the law of delict. However, the approach adopted in this dissertation is
that the law of delict includes both the common law as well as certain statutes that
impact on delictual principles and are aimed at compensating harm. From this
perspective, the creation of a new statute would therefore amount to the development
of the South African law of delict.
22
1.7 Relevance of the research questions
The relevance of the first research question probably speaks for itself. Considering the
high levels of violent crime and the substantial number of crime victims who clearly
would require compensation for the harm that they have suffered, it is obviously
important to evaluate the available remedies currently available in the South African
legal system. For as long as South Africa continues to struggle with a high crime rate,
crime victim compensation will remain an important issue that demands attention.
It is argued that the second research question is both practically and theoretically
important. To comprehend its relevance, regard may be had to the fact that this is not
the first research project to emphasise the need to provide adequate crime victim
compensation in a swift and cost-effective manner. It was the subject of an extensive
2004 SALRC report which noted that, within the field of safety and security, the victim-
centred approach to dealing with the impact of crime required emphasis being placed
on “the need to restore victims to a position comparable to that which they occupied
prior to their victimisation” 63 (“SALRC Report”). 64 Ultimately, this involved considering
the possibility of compensating crime victims which, in turn, involved an examination
of the proposal “to establish a Victim Compensation Scheme in SA, through which the
state would offer financial compensation to victims or their dependants for the harm
done by offenders.” 65
Taking into account some of the arguments that may be raised for and against the
establishment of a statutory compensation fund for crime victims, the SALRC
ultimately concluded that, although “there seemed to be substantial support for the
creation of a compensation fund” 66 the establishment of the fund was not a viable
option. 67 This conclusion was reached primarily on the basis that a fund could not be
afforded in the financial climate of the time and because certain prerequisites required
for the effective and efficient administration of a crime victim compensation fund were
absent at the time. 68
63 SALRC A Compensation Fund for Victims of Crime 10.

64 This dissertation is distinguished from the SALRC Report in paragraph 1.8 below.
66 321.
67 111-118, 321-326. See also paragraph 4.3 in chapter 4.
68 111-118. See also paragraph 4.3 in chapter 4
23
Despite the SALRC’s financially-motivated opposition to the creation of a fund, it

nevertheless noted that “the establishment of a compensation fund should not be
abandoned but developed over time as a long term project within the broader objective
of improved services for victims of crime” 69 and that “developing a motivation for the
establishment of a [statutory compensation fund] in SA remains incomplete, and must
be completed if legislation is to be drafted, since no law should be passed without its
objectives being clearly defined and costed.”70
The SALRC’s rejection of the proposal to establish a statutory crime victim

compensation scheme leaves scope for a further detailed study concerning the topic.
In fact, as the commission itself indicated, what seems to be absent is a proper
motivation – or justification – for the potential statutory reform of the law relating to
crime victim compensation.
Hence, it is argued that the research question concerning the justification of a crime
victim compensation fund assumes significant theoretical and practical relevance. It is
important because it attempts to fill the gap in the SALRC Report insofar as a
justification for a potential fund is concerned. In the process several other relevant
issues that have theoretical and practical importance will be canvassed, including the
following: the role and function of the South African law of delict in general; the
relationship between the common law of delict and a statutory compensation scheme
that could potentially be enacted; the current judicial development of state delictual
liability (the nature of the state’s liability as well as the judicial development of
established common-law delictual principles); and providing a general theoretical
framework which may be used for the purpose of future statutory reform of the South
African law of delict.
The third research question involves matters that are of obvious practical importance.
As indicated above, the dissertation will consider how the proposed fund would
actually work as well as various related practical considerations which the legislature
should consider if it were to enact a statutory compensation fund for crime victims. It
is suggested that an examination of these issues may have considerable practical
value as a point of departure for any legislative committee tasked with the
69 SALRC A Compensation Fund for Victims of Crime 322. See also paragraph 4.3 in chapter 4.
70 318-319.
24
responsibility of proposing a crime victim compensation scheme. The further

investigation of such a scheme may also benefit from the evaluation of existing foreign
compensation schemes undertaken in this dissertation.
1.8 Differences between this dissertation and earlier research on the

establishment of a statutory compensation fund for crime victims in South
Africa
The questions above have to some extent been considered in earlier studies. The
SALRC examined the feasibility of a crime victim compensation fund and published
the SALRC Report in 2004. Subsequently, JC von Bonde investigated the matter in a
doctoral dissertation. 71 However, these studies left a number of important issues open
for further analysis.
First, in its report, the SALRC provided a synopsis of the crime victim compensation
regime under South African law as well as a comparative overview of the legal position
of crime victims in the United States of America and the United Kingdom (“UK”).
Similarly, Von Bonde’s dissertation also describes the legal position of the crime victim
in South Africa, the UK, India and New Zealand. Although this dissertation will also
investigate the position of crime victims within the South African compensatory
framework, it will cover a variety of issues which the SALRC Report and Von Bonde’s
dissertation left untouched.
Most importantly, this dissertation sets out a critical evaluation of recent judicial
developments within the common law of delict which have taken place since those two
studies have been finalised. This includes a description and critical evaluation of the
recent judicial expansion of the state’s delictual liability for harm arising from crime.
This development arguably became much more significant when the CC handed down
its decision in K v Minister of Safety and Security 72 in 2005, one year after the SALRC
Report was completed. The dissertation will also critically evaluate the development
of the common-law doctrine of vicarious liability by the CC in F v Minister of Safety
71 Von Bonde Redress for Victims of Crime in South Africa 148.

72 2005 (6) SA 419 (CC).
25
and Security, 73 which was handed down in 2012, five years after the completion of
Von Bonde’s work. 74 In addition, this research project will also examine the evidentiary
obstacles related to proving fault (especially negligence), which confronts those crime
victims who elect to institute a delictual claim – another issue left unexamined by
earlier research.
The SARLC Report provided a summary of the merits of a statutory compensation

scheme for crime victims in South Africa wherein it briefly considers potential
arguments for and against the establishment of a scheme. However, as the quoted
extract above indicates, the commission does not attempt to provide a justification for
this potential statutory development. Von Bonde’s dissertation does not consider the
merits of a statutory compensation scheme in any detail and also does not provide a
justification for legislative development in this context. This dissertation will attempt to
fill this gap by proposing a theoretical framework for statutory reform of the law relating
to crime victim compensation.
Although the SALRC Report includes a draft bill that could provide the legislature with
practical assistance if it were to enact a crime victim compensation scheme, the report
does not pay regard to specific practical questions and considerations which will
require the legislature’s attention, if it were indeed to enact the proposed fund. Von
Bonde’s work also did not examine any potential practical questions which may be of
relevance to a legislature. This dissertation will consider several considerations and
do so after having evaluated the approaches adopted by foreign legislatures so as to
ensure the most workable solution within the South African context.
The approach in this dissertation is also different from that of the SALRC Report and
Von Bonde’s research in the following respects. As part of the SALRC Report, the
commission pays much attention to the question of developing a restorative justice
approach in the South African criminal justice system as well as other issues related
to victim-empowerment. This is also true of the dissertation written by Von Bonde,
although to a lesser extent. Von Bonde’s research considers the legal position of crime
73 2012 (1) SA 536 (CC).

74 See further paragraph 2.2.1.2.4 in chapter 2.
26
victims in India and New Zealand in detail. None of these matters will be considered
in this dissertation.
Von Bonde ultimately makes the following recommendation: 75
“[T]he consolidation of the Road Accident Fund and the Compensation Fund operating in terms
of the Compensation for Occupational Injuries and Diseases Act. These two bodies should be
amalgamated to create a unified Compensation Scheme to compensate victims of crime, as well
as victims of traffic and industrial injuries. General qualifying criteria for claimants would be
drafted, with specific criteria applying in cases of traffic, industrial and crime related injuries,
respectively.”
Referring to Canada and Australia as providing an example of the way forward for the
South African legislature in relation to crime victim compensation, 76 the SALRC
formulated its ultimate proposal as follows: 77
“[T]he Commission was of the view that […] legislation should, as a minimum, provide for: (a) the
creation of a permanent structure, like an office for Victims of Crime within government structures,
to take care of the needs of victims on a permanent basis; (b) the creation of a permanent body
or institution (like an Advisory Council) to advise government on policy issues and legislative
amendments to meet the needs of victims of crime; (c) the introduction of legislative […] principles
to guide the treatment of victims of crime; and (d) the creation of a dedicated fund to facilitate
and develop the establishment of victim services. The above principles are supported by all
commentators to the Commission’s discussion documents.”
As will become clearer through the course of the dissertation, this dissertation will
consider issues and material not investigated in the earlier research referred to and
will propose a different system for the compensation of crime victims.
1.9 Structure of this dissertation

1.9.1 Chapter 2: A description and evaluation of the current South African legal
position regarding the compensation of harm suffered by crime victims
This chapter will focus on the first research question, examining and evaluating the
ways in which the South African legal system currently provides compensation for
crime victims.
75 Von Bonde Redress for Victims of Crime in South Africa iv.

76 SALRC A Compensation Fund for Victims of Crime 334-335.
77 334. The commission pointed out that the Probation Services Act 11 of 1986 provided a legislative
basis for establishing victim-centred programmes aimed at the compensation of crime victims.
27
First, crime victims may seek compensation by means of a common-law claim in delict.
The theoretical and practical problems arising from the judicial expansion of the
delictual liability of the state are examined. The evidentiary burdens facing crime
victims who institute common-law delictual claims are highlighted. Then follows an
analysis of the existing statutory provisions allowing crime victims to claim
compensation for harm caused by crime, in particular the provisions contained in the
Criminal Procedure Act.
The chapter concludes that an alternative form of crime victim compensation should
be considered. The most common solution adopted in foreign jurisdictions is the
enactment of a statutory crime victim compensation scheme. In South Africa this would
entail a large-scale legislative reform of the law of delict and funding from tax revenue.
The crucial question is whether this statutory development is justifiable.
1.9.2 Chapter 3: Legal and public policy considerations that justify legislative
development of the law of delict
Chapters 3 and 4 deal with the second research question: is it justifiable to establish
a statutory crime victim compensation scheme?
Chapter 3 will propose a general theoretical framework that provides an outline for
future statutory reform of the law of delict insofar as victim compensation is concerned.
This chapter examines legal and public policy considerations which in the past have
formed the basis for statutory reform of specific areas of the law of delict. To do so,
the focus will shift to analysing the background to, and policy bases of, the three major
statutes that have developed the law relating to the compensation of specific
categories of victims in the past: the RAF Act, the COIDA and the CPA.
As will be illustrated in chapter 3, these statutes share common policy considerations

that have been used to justify earlier legislative reform of the law of delict. They were
enacted to alleviate the victims’ exposure to the substantial risk of harm arising from
motor vehicle accidents, occupational injuries and diseases and defective
manufactured products as well as the accompanying risk of receiving no
compensation if the relevant risk of harm materialises. They also aim to promote the
28
constitutional right to social security. A further common aim is to ease the significant
evidentiary burden that relates to proving the common-law delictual requirement of
fault (specifically negligence).
Further general considerations underlying the enactment of these statutes include the
high costs involved when instituting a common-law delictual claim as well as the likely
under-compensation which may occur when doing so, the advantages of statutory as
opposed to judicial reform, and the need to avoid arbitrary outcomes that may be the
product of claiming compensation by delictual action.
1.9.3 Chapter 4: Justifying the legislative development of the law of delict by

establishing a statutory compensation fund for crime victims
This chapter examines whether the establishment of a statutory crime victim

compensation fund could fit within the proposed theoretical framework outlined in
chapter 3.
Therefore, chapter 4 will establish the extent of the risk of falling victim to crime (as
well as the accompanying risk of receiving no compensation where risk materialises).
Also, it will examine whether the enactment of the proposed scheme could further the
constitutional right to social security. Furthermore, it will be considered whether crime
victims, like victims of motor vehicle accidents, occupational injuries and diseases and
defective manufactured products are confronted with an evidentiary obstacle in
claiming compensation if they institute common-law delictual claims.
The chapter will also examine whether the general dissatisfaction with the high
transaction costs and levels of under-compensation attributed to the civil procedural
system, the advantages of statutory as opposed to judicial reform and the need to
avoid arbitrary outcomes can justify the proposed scheme.
Lastly, it will be enquired whether considerations that thus far have counted against
the introduction of the fund, namely problems with affordability and administration, as
well as the potential erosion of the deterrence function of the law of delict, present
conclusive arguments against its implementation.
29
Chapter 4 concludes that, when compared to the solutions offered by the current
developments within the common-law of delict and existing legislation, a statutory
compensation fund seems, in principle, to be a more desirable solution to improve the
legal position of crime victims insofar as their compensation is concerned.
1.9.4 Chapter 5: Practical considerations that are relevant when developing a

statutory compensation fund for crime victims
The success of any proposal to enact a statutory compensation scheme would depend
on how well it would work in practice. Chapter 5 will focus on several practical
considerations which the South African legislature should take into account if it were
indeed to enact such a scheme.
Some of these practical questions include the following. Who should be eligible to
claim compensation from the proposed fund? If a person satisfies the eligibility criteria,
what type of harm should be compensated? Should the potential availability of a claim
against a statutory compensation fund involve the abolition of the crime victim’s
common-law claim against the actual perpetrator of the crime? Should the victim’s
claim against the compensation fund be limited? Should the compensation fund be
no-fault based? Should benefits received under a statutory compensation fund be
deducted from compensation received under a residual common-law claim of delict (if
it were to remain)?
1.9.5 Chapter 6: Conclusions
The final chapter of this dissertation will provide a summary of the main arguments set
out in the dissertation. It will also include comments relating to the relationship
between the common law of delict and statute as well as the function of the South
African law of delict, which are themes that will be referred to during the course of the
dissertation. This is done with the view of making a meaningful contribution towards
the development of the South African law of delict in general and, specifically, in
furtherance of future research projects that focus on the potential statutory
30
development of the law of delict, a hitherto relatively under-researched area within the
South African legal landscape. These comments pertain to the issues considered, and
proposals presented, throughout the dissertation.
In conclusion, as the structure of the dissertation indicates, the current compensatory

regime relating to crime victims will first be investigated. After concluding that it is
undesirable from a theoretical and practical perspective, it will be suggested that it
may be worthwhile to consider alternative methods to compensate crime victims. In
this context, the strategy adopted in most other jurisdictions is the establishment of a
statutory compensation scheme for crime victims. This would potentially amount to the
statutory development of the law of delict, which requires an investigation into the
justifiability of such a development. Only once it has been concluded that such a
development may, in principle, be justifiable, will attention be given to more practical
and specific questions, e.g. who may be eligible for compensation. Therefore, up to
the point at which it is specifically considered, the term “victim of crime” or “crime
victim” will bear its ordinary, general meaning.
31
CHAPTER 2: A DESCRIPTION AND EVALUATION OF THE CURRENT SOUTH

AFRICAN LEGAL POSITION REGARDING THE COMPENSATION OF HARM
SUFFERED BY CRIME VICTIMS
2.1 Introduction……………………………………………………………………………..35
2.2 Seeking compensation for harm arising from crime through the
common law of delict…………………………………………………………………...36
2.2.1 The expansion of state delictual liability for harm arising from crime………37
2.2.1.1 The expansion of the state’s delictual liability for the

wrongful and negligent failure of state employees to prevent crime…..38
2.2.1.1.1 The background to, and the role of the Constitution in,
the state’s expanded delictual liability for the wrongful and
negligent failure of state employees to prevent crime……………38
2.2.1.1.2 A description of the expansion of the state’s delictual

liability for the wrongful and negligent failure of state
employees to prevent crime…………………………………………42
2.2.1.1.3 An evaluation of the state’s expanded delictual liability

for harm due to the negligent and wrongful failure
of state employees to prevent crime………………………………..48
a. Introduction………………………………………………..……....48
b. The distinction between direct and vicarious liability……..…..48
c. The common-law requirements for vicarious liability……..…..49
d. The nature of the state’s delictual liability in

32
Van Duivenboden, Van Eeden, Hamilton and

Carmichele……………………………………………………….50
e. An evaluation of criticism of the state’s expanded

delictual liability for the negligent and wrongful
failure of its employees to prevent crime……………………..60
i. Fagan’s criticism: the instrumentalisation of

state employees and the production of arbitrary
outcomes…………………………………………………….60
ii. An evaluation of Fagan’s criticism regarding the

reasoning in Van Duivenboden…………………………… 62
iii. Testing Fagan’s criticism of the reasoning

in Van Duivenboden against recent judgments relating
to the negligent failure of private security guards to
prevent crime………………………………………………..64
iv. Concluding remarks on Fagan’s criticism

regarding the reasoning in Van Duivenboden………...... 68
2.2.1.1.4 Conclusion: the expansion of the state’s delictual liability

due to the negligent and wrongful failure of state
employees to prevent crime…………………………………………70
2.2.1.2 The expansion of the state’s delictual liability for harm suffered
due to intentionally-committed crimes of its employees………………...75
2.2.1.2.1 Introduction…………………………………………………………...75
2.2.1.2.2 The background: South African courts’ initial

33
unwillingness to impose vicarious liability on

employers for the intentionally-committed crimes
of employees…………………………………………………………76
2.2.1.2.3 The judicial expansion of the state’s vicarious liability

for the harm caused by the intentionally-committed
crimes of police officers……………………………………………..81
a. The decision of the SCA in K v Minister of Safety

and Security……………………………………………………….81
b. The judgment of O’Regan J in K v Minister of Safety

and Security……………………………………………………….83
c. The majority judgment of Nugent JA in Minister

of Safety and Security v F………………………………………. 85
d. The majority judgment of Mogoeng J in F (CC)……………….86
2.2.1.2.4 An evaluation of the widened vicarious liability of the

state for the harm caused by the intentionally-committed
crimes of police officers……………………………………………..87
a. Arbitrary outcomes produced by the judgments in

K (CC) and F (CC)…………………………………………………87
i. The strength of the connection between

wrongdoing and employment is made a
function of the employer’s identity…………………………..87
ii. Arbitrary protection of legal interests……………………….89
b. O’Regan J’s omissio commissio-argument…………………..…90

34
c. The applicability of human rights contained

in the Bill of Rights…………………………………………………92
d. Trust in the police as basis for the decision in F (CC)………….95
e. The relevance of “standby duty” in determining

a sufficiently close connection……………………………………96
2.2.1.2.5 Conclusion: the expanded delictual liability of the

state for the harm caused by the intentionally-committed
crime of its employees……………………………………………….98
2.2.2 Evidentiary problems that may confront a crime

victim who institutes a common-law delictual claim directly
against the state for compensation of harm arising from crime……………105
2.3 The statutory response to providing compensation to crime victims………….112
2.3.1 The Criminal Procedure Act…………………………………………………..112
2.3.2 Critical evaluation of the provisions in the Criminal Procedure

Act that provide a crime victim with assistance to claim compensation….114
2.3.3 The Prevention of Crime Act………………………………………………….117
2.4 Conclusion…………………………………………………………………………..123
35
CHAPTER 2: A DESCRIPTION AND EVALUATION OF THE CURRENT SOUTH

AFRICAN LEGAL POSITION REGARDING THE COMPENSATION OF HARM
SUFFERED BY CRIME VICTIMS
2.1 Introduction
This chapter, specifically, focuses on the following question: is the current South
African legal position regarding the compensation of crime victims satisfactory? If it is,
then it is the end of the matter. If not, a further investigation into alternative solutions
for satisfactory crime victim compensation may be warranted.
This chapter will commence by examining the way in which the South African legal
system currently compensates crime victims. To do so, attention will first be paid to
the common law of delict as the branch of the law that takes on the compensation of
harm as its primary function. 1 Thereafter, the focus will turn towards an analysis of the
existing statutory mechanisms that may provide the crime victim with a remedy in
respect of his harm. In particular, the provisions of the Criminal Procedure Act 51 of
1977 will be examined. Attention will also be given to the impact that the Prevention
of Organised Crime Act 121 of 1998 (“POCA”) may have in the context of crime victim
compensation.
Regarding the structure of this chapter, it may be considered whether it would be more
appropriate to start with an analysis of the existing statutory provisions that has a
limited impact on crime victim compensation and then examine the way in which the
common law of delict provides crime victims with relief. However, this chapter deals
with the current compensatory regime for crime victims in South Africa and, as will
become clear throughout the course of this chapter, the most notable and important
development in this context has been the recent expansion of the state’s delictual
liability for harm arising from crime. Indeed, the practical and theoretical concerns
NJ van der Merwe & PJJ Olivier Die Onregmatige Daad in die Suid-Afrikaanse reg 3 ed (1976) 1-3; J
the primary function of this branch of the law.
36
related to this development of the common law of delict partly prompted this research
project. The chapter therefore investigates this development first and only focuses on
existing statutory provisions, which plays a much less significant role in the context of
crime victim compensation, thereafter.
For the sake of clarity, it is further emphasised that the aim of this chapter is not to
determine whether a specific type of crime is adequately compensated under the law
of delict. Rather, the focus is on describing and evaluating the compensatory regime
in South Africa as it relates to crime victims. To do so, the position under the common
law is first described. In this context, the chapter focuses on cases which, arguably,
have contributed most to the expansion of state delictual liability for harm arising from
crime. Those cases involved the crimes of rape and assault. Therefore, the focus on
those crimes are incidental to the main aim of the chapter. The dissertation is
structured in a way that brings the specific question of eligibility (the meaning of the
term “victim of crime”) into play in chapter 5 (see paragraph 5.2), only after it has been
determined that, in principle, the establishment of a statutory compensation scheme
may be justifiable.
2.2 Seeking compensation for harm arising from crime through the common
law of delict
The common law of delict may be described as being “primarily concerned with the
circumstances in which a person can claim compensation for harm that has been
suffered.” 2 It is trite that, in order to be successful with a delictual claim, a plaintiff must
prove on a balance of probabilities that his harm was culpably and wrongfully caused
by another person’s conduct. Someone who has fallen victim to crime and who is
interested in obtaining damages in respect of the harm suffered, will thus be required
to prove those elements of liability in a civil court.
It might be thought that, considering the high frequency of crime and the
accompanying high risk of falling victim to harm arising from crime, 3 victims will
regularly turn towards the common law of delict to compensate their harm. However,
2 Loubser & Midgley (eds) The Law of Delict 4.

37
an overview of the South African law reports provide remarkably few examples of
instances where a crime victim instituted a delictual claim against the purported
criminal to repair the harm he suffered. 4
Of course, this does not mean that there are no cases in which crime victims elect to
institute a common-law delictual claim to compensate their harm. Indeed, there are
several cases where victims of crime have elected to do so, all of which appear to
share a single feature: in almost all of the cases that deal with crime victim
compensation, the victim institutes his claim not against the criminal, but rather against
the state (typically the Minister of Safety and Security). This choice ultimately appears
to be based on the probable financial impecuniosity of the criminal in comparison with
the substantially deeper pockets of the state. 5
In this chapter the arguments made by the victim to hold the state delictually liable, the
court’s reasoning in those cases and the nature of the state’s delictual liability will be
discussed in further detail. For present purposes it is sufficient to note that, where
crime victims elect to institute delictual proceedings to obtain compensation, they
mostly seek to hold the state vicariously liable. This has led to the expansion of state
delictual liability for harm arising from crime, 6 which will be described and evaluated
in the following section.
2.2.1 The expansion of state delictual liability for harm arising from crime
This part of the chapter concerns the recent expansion of the state’s delictual liability
for harm arising from crime. Essentially, this development has occurred in two ways,
which will also provide the broad outline for the discussion that follows in this section.
On the one hand, crime victims have successfully argued that the state may be held
vicariously liable where its employees have negligently and wrongfully failed to prevent
4 For example, in the following cases the victim instituted the condictio furtiva for theft of his property:
Chetty v Italtile Ceramics Ltd 2013 (3) SA 374 (SCA); Crots v Pretorius 2010 (6) SA 512 (SCA); First
National Bank of Southern Africa Ltd v East Coast Design CC 2000 (4) SA 137 (D); Clifford v Farinha
1988 (4) SA 315 (W). In the following cases the victim instituted a claim arising from violent crime: N v
T 1994 (1) SA 862 (C); Mabaso v Felix 1981 (3) SA 865 (A); Schoultz v Potgieter 1972 (3) SA 371 (E);
Manuel v Holland 1972 (4) SA 454 (R); Wessels v Pretorius, NO 1974 (3) SA 299 (NC); Mbatha v Van
Staden 1982 (2) SA 260 (N); Groenewald v Groenewald 1998 (2) SA 1106 (SCA).
5 South African Law Reform Commission (“SALRC”) Project 82: Sentencing (A Compensation Fund for
Victims of Crime) (2004) 191, 315. See further paragraphs 4.2.3.1 and 4.2.3.5 in chapter 4.
6 See Loubser & Midgley (eds) The Law of Delict 264-269.
38
the crime that has caused the victim’s harm. 7 On the other hand, and arguably more
significantly, courts have also held the state vicariously liable where the harm caused
to crime victims occurred as a result of intentionally-committed crimes occasioned by
its employees. 8
Attention will first be given to the expansion of the state’s delictual liability for the
wrongful and negligent failure of its employees to prevent crime, which will be
described and evaluated in the next section.
2.2.1.1 Expansion of the state’s delictual liability for the wrongful and negligent
failure of state employees to prevent crime
2.2.1.1.1 The background to, and the role of the Constitution in, the state’s
expanded delictual liability for the wrongful and negligent failure of
state employees to prevent crime
The expansion of the state’s delictual liability in cases where their employees
negligently and wrongfully failed to prevent crime may be regarded as the result of the
considerable influence which the Constitution of the Republic of South Africa Act, 1996
(the “Constitution”) has had when assessing the wrongfulness of a state employee’s9
negligent failure to prevent crime. In particular, it may be said that the constitutional
rights to safety and security of the person, 10 life 11 and human dignity 12 as well as the
constitutional norm relating to government accountability 13 have opened the pathway
to greater state liability.
7 See Carmichele v Minister of Safety and Security (Centre for Applied Legal Studies Intervening) 2001
(4) SA 938 (CC); Minister of Safety and Security v Carmichele 2004 (3) SA 305 (SCA); Minister of
Safety and Security v Van Duivenboden 2002 (6) SA 431 (SCA); Van Eeden v Minister of Safety and
Security 2003 (1) SA 389 (SCA); Minister of Safety and Security v Hamilton 2004 (2) SA 216 (SCA);
paragraph 2.2.1.1 below.
8 K v Minister of Safety and Security 2005 (3) SA 179 (SCA); K v Minister of Safety and Security 2005
(6) SA 419 (CC); Minister of Safety and Security v F 2011 (3) SA 487 (SCA); F v Minister of Safety and
Security [2011] ZACC 37; paragraph 2.2.1.2 below.
9 In most cases which courts have dealt with, the employees were police officers, but it may also include
a reference to other employees, such as public prosecutors.

10 Section 12 of the Constitution.
13 Section 41(1) of the Constitution.
39
Properly depicting the influence of the Constitution in this context requires a brief
description of Carmichele v Minister of Safety and Security 14 (“Carmichele CC”),
which provided the impetus for the constitutional development of the law of delict.
In this case, the applicant was assaulted by one Coetzee. Prior to the assault, Coetzee
had been convicted on charges of housebreaking and indecent assault. In addition to
having been found guilty of these crimes, he was accused of rape and had appeared
earlier before the magistrate’s court on this charge. Even though members of the
public provided the investigative police officer with information that Coetzee posed a
significant threat to their safety and security, he advised the public prosecutor that
there was no reason to deny Coetzee bail and recommended that he be released on
warning. When Coetzee subsequently appeared before a magistrate on the rape
charge, the prosecutor therefore did not place before the magistrate any information
concerning Coetzee’s previous conviction, nor did he oppose Coetzee’s release on
his own recognisance.
Following his release, a concerned member of the community approached the police
and requested Coetzee’s detention pending his trial. The police officer in question
referred that person to the public prosecutor who, in turn, advised that nothing could
be done unless Coetzee committed another offence.
Shortly thereafter, Coetzee was re-arrested, but after pleading not guilty on the charge
of rape, he was re-released by the magistrate, pending a decision by the Attorney-
General on whether the case should be tried in the High Court or the Regional Court.
The Attorney-General, who had been in possession of documents which reflected the
seriousness of the rape and the extent of Coetzee’s sexual deviation, had not
instructed the public prosecutor to oppose bail, with the result that this re-release was
therefore unopposed.
The applicant was assaulted following Coetzee’s unopposed re-release whereafter

she instituted a delictual claim against the Ministers of Safety and Security and of
Justice, arguing that the members of the police and the public prosecutors had owed
her a legal duty to prevent Coetzee from being released on bail, and that their negligent
failure to comply with this duty allowed him to cause her harm. The High Court rejected
14 2001 (4) SA 938 (CC).

40
the argument and ordered absolution from the instance on the ground that the failure
did not amount to wrongfulness. 15 The appeal to the Supreme Court of Appeal (“SCA”)
was dismissed, and the applicant subsequently appealed to the Constitutional Court
(“CC”).
The CC opined that the High Court and the SCA had overlooked the demands of the
Constitution, especially the Bill of Rights, and that the law of delict had to be developed
beyond existing precedent. At the time, wrongfulness and the concomitant enquiry into
the existence of a legal duty, fell to be determined with reference to the criterion as
developed in the pioneering decision Minister van Polisie v Ewels 16 (“Ewels”), i.e. the
boni mores or legal convictions of the community. Applying this common-law criterion
and following established precedent, the SCA had denied the existence of a legal duty
on the part of the police and the state prosecutors: 17
“[I]t cannot be said […] that it was unreasonable for the prosecutor not to have opposed the
release of Coetzee on his own recognisance. For this reason the prosecutor did not owe the
appellant a legal duty either to oppose bail or to ensure his subsequent rearrest. […] There is
another reason why the circumstances of the present case are not capable of establishing the
legal duty contended for. This is that there was no special relationship shown to exist between
the prosecutors at Knysna and the appellant. That there must be some relationship between the
person who owes the legal duty and the person to whom the duty is owed, the breach of which
would expose the latter to a particular risk of harm in consequence of an omission, which risk is
different in its incidence from the general risk of harm to all members of the public, is well
established in English law and is also in accordance with our law.”
In response, the CC remarked that “the obligation of Courts to develop the common
law, in the context of the s 39(2) objectives, is not purely discretionary”, [and that] the
Courts are under a general obligation to develop” 18 the common law so that it gave
effect to the section 39(2) objectives. 19 The CC therefore referred the case back to the
High Court which, in its second judgment in the matter, allowed the plaintiff’s claim.
On appeal to the SCA, the matter finally came to conclusion when the Ministers’ appeal
was dismissed (this judgment is discussed in detail below). 20
15 2001 (4) SA 938 (CC) paras 27-32.

16 1975 (3) SA 590 (A).
17 Carmichele v Minister of Safety and Security 2001 (1) SA 489 (SCA) paras 19-20.
18 Carmichele v Minister of Safety and Security 2001 (4) SA 938 (CC) para 39.
19 Section 39(2) of the Constitution states: “When interpreting any legislation, and when developing the
common law or customary law, every court, tribunal or forum must promote the spirit, purport and
objects of the Bill of Rights.”
20 Minister of Safety and Security v Carmichele 2004 (3) SA 305 (SCA).
41
Although criticised by some, 21 the judgment in Carmichele CC was described as

“seminal”22 for the purposes of the law of delict and hailed as constituting a positive
development of the common law, especially insofar as it ensured fuller protection of
the right to bodily integrity and security of the person, 23 and because it provided “much-
needed guidance and direction on the interplay between the Constitution and the
common law.” 24 Another reason for its positive reception may be the cautionary
approach taken in respect of the Constitution’s future role in relation to private law,
one that is mindful of the fact that the major engine for law reform should be the
legislature and not the judiciary 25 and which “could reform the law of delict without
having to deform it.”26
In summary, Carmichele CC “gave the green light to the courts”27 to revisit the basis
upon which state liability cases should be determined. As will be indicated in the next
section, it allowed courts to take into account several constitutional rights when
considering whether a state employee’s negligent failure to prevent crime should be
regarded as wrongful and in the process paved the way for a widened state delictual
liability. 28
21 See A Fagan “Reconsidering Carmichele” (2008) 124 SALJ 659 659-666.

22 Dendy v University of the Witwatersrand and Others 2005 (5) SA 357 (W). See also J Neethling “Die
Carmichele-sage kom tot ‘n gelukkige einde” (2005) 2 TSAR 402 402.
23 J Neethling “Die Hoogste Hof van Appèl Bevestig die Uitdyende Verantwoordelikheid van die Staat
om die Reg op die Fisies-Psigiese Integriteit in die Lig van die Grondwet te Beskerm” (2003) 4 TSAR
783 788-790; J Neethling “Delictual Protection of the Right to Bodily Integrity and Security of the Person
Against Omissions by the State” (2005) 122 SALJ 572 572-574; JR Midgley & B Leinius “The impact of
the constitution on the law of delict: Carmichele v Minister of Safety and Security” (2002) 119 SALJ 17
27.
24 Midgley & Leinius (2002) SALJ 27.
25 H MacQueen “Delict, contract and the Bill of Rights: a perspective from the United Kingdom” (2004)
121 SALJ 359 359-370.

26 F du Bois “State Liability in South Africa: A Constitutional Remix” (2010) 25 Tulane European and
Civil Law Forum 139.

27 C Okpaluba & P Osode Government Liability: South Africa and the Commonwealth (2012) 124.
28 Okpaluba and Osode Government Liability 16-18; 124-127; Neethling (2005) SALJ 572-574;
Neethling “State (public authority) liability ex delicto (1)” (2012) 75 THRHR 622 622-624.
42
2.2.1.1.2 A description of the expansion of the state’s delictual liability for the
wrongful and negligent failure of state employees to prevent crime
Following the judgment in Carmichele CC, but prior to handing down the final judgment
in the matter, the SCA was presented with an opportunity to illustrate the impact of the
Constitution on the law of delict according to the recommendation in Carmichele CC.
In Minister of Safety and Security v Van Duivenboden 29 (“Van Duivenboden”), the

plaintiff brought a claim in delict against the Minister of Safety and Security after he
had been shot by his neighbour. It was common cause that, prior to the incident, police
officers had information that the perpetrator, when drunk, habitually threatened to use
his firearms against himself and others. 30 Nonetheless, they had failed to take any
steps to initiate an enquiry in terms of the Arms and Ammunition Act 75 of 1969 (which
empowered the Commissioner of Police to declare someone unfit to possess a firearm
and to seize it). The pertinent question for the SCA’s consideration was whether the
negligent failure of the police officers to disarm the perpetrator of the crime was
wrongful.
In his determination of the wrongfulness of the police officers’ omission, Nugent JA

reiterated the common-law rule that the negligent failure to act positively in preventing
harm was not prima facie wrongful. 31 He stated that it therefore had to be determined
whether the police officers owed the plaintiff a legal duty to prevent his harm. 32 To
answer that question, Nugent JA restated the common-law criterion as developed in
Ewels. 33 The court held that, in the context of wrongfulness for an omission, “the
question to be determined is one of legal policy” 34 and that, in “applying the test that
was formulated in [Ewels] the ‘convictions of the community’ must necessarily now be
informed by the norms and values of our society as they have been embodied in the
1996 Constitution.”35 In this way, public and legal policy became the gateway for the
29 2002 (6) SA 431 (SCA).

30 Paras 4-11.
31 Paras 12-13.
32 Para 12.
33 Paras 12-13.
34 Para 16.
35 Para 17.
43
introduction of constitutional rights in the application of the common-law rules of the

law of delict. 36
Nugent JA noted several policy considerations that might weigh against the imposition
of delictual liability where police officers negligently fail to prevent crime. These
arguments included the public policy consideration, rooted in a laissez faire concept
of liberty, which suggested that it might be an unreasonable infringement upon
someone’s personal autonomy to expect him to take positive steps in order to avert
harm to others. 37 Similarly, the principle of equality might be infringed upon by
imposing liability on one person where others might equally be faulted for their failure
in preventing the relevant harm. 38 On a broader level, a public policy consideration
that might inhibit the imposition of liability on the state and its functionaries is the
apparent utility of allowing them the freedom to provide public services without the
chilling effect of the threat of litigation if they negligently failed to prevent harm. 39
However, these concerns were outweighed by the following considerations. First, the
court emphasised the obligation imposed on the state in terms of section 7 of the
Constitution not only to respect but also to “protect, promote and fulfil the rights in the
Bill of Rights”. 40 Secondly, section 2 of the Constitution demanded that these duties
imposed by the Constitution on the state must be fulfilled. 41 The relevant constitutional
rights which the majority had in mind included the respective rights to safety and
security of the person, life and human dignity. 42 Thirdly, Nugent JA emphasised that
section 41(1) of the Constitution expressly required government that is not only
effective, transparent and coherent, but also accountable. 43 Ultimately, considerable
weight was attached to the constitutional norm of accountability. In fact, its application
convinced the majority of the court to impose delictual liability on the police officers
and to hold their employer, the state, vicariously liable: 44
“Where the conduct of the State, as represented by the persons who perform functions on its
behalf, is in conflict with its constitutional duty to protect rights in the Bill of Rights, in my view,
36 FDJ Brand “Influence of the Constitution on the Law of Delict” (2014) Advocate 42 43.
37 2002 (6) SA 431 (SCA) paras 16-18.
38 Para 19.
39 Paras 19-20.
40 Para 20.
41 Para 20.
42 Para 20.
43 Para 21.
44 Minister of Safety and Security v Van Duivenboden 2002 (2) SA 431 (SCA) paras 21-22.
44
the norm of accountability must necessarily assume an important role in determining whether
a legal duty ought to be recognised in any particular case […] Where there is a potential threat
of the kind that is now in issue the constitutionally protected rights to human dignity, to life and
to security of the person are all placed in peril and the State, represented by its officials, has a
constitutional duty to protect them. It might be that in some cases the need for effective
government, or some other constitutional norm or consideration of public policy, will outweigh
accountability in the process of balancing the various interests that are to be taken into account
in determining whether an action should be allowed […] but I can see none that do so in the
present circumstances.”
The judgment in Van Duivenboden indicates that the norm of accountability could have
a significant impact on a court’s reasoning where there appears to be no way of holding
the state accountable, other than for a delictual claim for damages. 45
The SCA ultimately found that the relevant police officers’ failure to act was indeed
wrongful. 46 Having also determined that their wrongful failure was negligent 47 and
caused the victim’s harm, 48 the court held that “the negligent conduct of police officers
in [the] circumstances [of the case] is thus actionable and [that] the State [should be
held] vicariously liable for the consequences of any such negligence.” 49
Shortly after the SCA handed down its judgment in Van Duivenboden, its reasoning
was confirmed and applied in Van Eeden v Minister of Safety and Security 50 (“Van
Eeden”), Minister of Safety and Security v Hamilton 51 (“Hamilton”) and Minister of
Safety and Security v Carmichele 52 (“Carmichele SCA”).
In Van Eeden the appellant had been assaulted, raped and robbed by a dangerous
criminal and serial rapist who had escaped from police custody after the failure on the
part of the police to ensure that the criminal’s cell door was properly locked. The
respondent had conceded vicarious liability, negligence and causation and the only
issue remaining for decision was whether the police officers’ failure was also wrongful
for the purposes of delictual liability. 53
In establishing wrongfulness, Vivier ADP applied the approach adopted in Van

Duivenboden, referring expressly to the state’s constitutional duties identified in that
45 See A Price “State Liability and Accountability” (2015) Acta Juridica 313-335.
46 Para 22.
47 Para 23.
48 Paras 24-30.
49 Para 22.
50 2003 (1) SA 389 (SCA).
51 2004 (2) SA 216 (SCA).
52 2004 (3) SA 305 (SCA).
53 Para 4.
45
judgment. 54 He added that the state is obliged under international law to “protect
women against violent crime and against the gender discrimination inherent in
violence against women”. 55 This obligation was imposed on the state by virtue of
section 39(1)(b) of the Constitution, read with the preamble to the Universal
Declaration of Human Rights, article 4(d) of the Declaration on the Elimination of
Violence against Women and article 2 of the Convention on the Elimination of All
Forms of Discrimination against Women. 56 Furthermore, the court emphasised section
205(3) of the Constitution, which states that the “objects of the police service are to
prevent, combat and investigate crime, to maintain public order, to protect and secure
the inhabitants of the Republic and their property, and to uphold and enforce the law”
as well as the South African Police Service Act 68 of 1995, in which the police’s
functions to maintain law and order and prevent crime is set out. 57
The court further emphasised the need to hold the state accountable and was of the
view that a finding of wrongfulness would not “disrupt the efficient functioning of the
police” 58 or “require additional resources.” 59 Apart from the state’s constitutional
imperatives Vivier ADP also pointed out the fact that the police had control over
someone “who was known to be a dangerous criminal and who was likely to commit
further sexual offences against women should he escape; and the fact that measures
to prevent his escape could reasonably and practically have been taken by the
police.” 60
Therefore, taking into account that the “police accordingly acted wrongfully and in view
of the admission of negligence, vicarious liability and causation”, 61 the court held the
state vicariously liable for the plaintiff’s harm which arose from a crime committed by
a third party, but which was caused, in law, by the negligent, wrongful failure of police
officers to comply with their legal duties.
54 Paras 12-22.
55 Para 15.
56 Para 15.
57 Para 16.
58 Para 21.
59 Para 21.
60 Para 24.
61 Para 24.
46
In Hamilton the respondent had suffered serious bodily injuries after being shot by one
McArdell, who was issued a license to possess a revolver after a successful
application lodged with the Stellenbosch Police Station in terms of section 3(1) of the
Arms and Ammunition Act. From the facts it appeared that McArdell had a history of
psychological and emotional disturbance and was receiving counselling from several
mental health professionals. She had also abused alcohol and certain psychiatric
medications were prescribed for her by various psychiatrists. The respondent
instituted a delictual claim against the Minister of Safety and Security, arguing that the
relevant police officers 62 working in the Stellenbosch Police Station owed him a legal
duty to take proper measures to screen an application for a firearm licence by making
such enquiries as were reasonable in the circumstances and to corroborate
the accuracy of the information furnished to them by the applicant in relation to her
physical, temperamental and psychological fitness to possess a firearm.
Van Heerden AJA held that there was indeed a legal duty on the police officers,
emphasising that the “sources of this legal duty […] are both the common law and the
statutory provisions”. 63 Although the court chose not to rely directly on constitutional
rights in identifying the source of the state employee’s legal duties, it did follow the
reasoning in Van Duivenboden insofar as it considered legal and public policy
considerations relevant to the determination of wrongfulness.
The court stated that the public interest would be best served by allowing a delictual
claim against the state. 64 It also noted “the undoubted public importance of the
effective control of firearms.” 65 In addition, the court was convinced that there was no
possibility that imposing delictual liability upon the state would open the floodgates of
litigation or that it would result in the “chilling effect of potential limitless liability on the
efficient and proper performance by the police of their primary functions”. 66 Because
there appeared to be no effective way to hold the state accountable other than by
allowing an action for delictual damages, the court held the Minister of Safety and
Security vicariously liable for the plaintiff’s harm, which arose from a crime, but was
62 2004 (2) SA 216 (SCA) paras 27-29: reference is pertinently made to two police officers (Warrant
Officer Loubser and Lieutenant Groenewald) who were required to comment and make a
recommendation in respect of the application.
63 Para 36.
64 Paras 35-36.
65 Para 36.
66 Para 35.
47
found to be caused in law by the negligent, wrongful failure of police officers to comply
with their legal duties.
Lastly, in Carmichele SCA, Harms JA, in respect of the element of wrongfulness, held
that although it was trite that the police officers and public prosecutors owed the victim
a legal duty under public law to oppose bail, 67 the court had to establish whether the
breach of such a public legal duty by the respective state employees could be
transposed to a private legal duty. 68 To answer this question, the court relied heavily
on the reasoning in Van Duivenboden and, again, emphasised the need to hold the
state accountable: “Did the State owe a duty to the plaintiff? The answer lies in the
recognition of the general norm of accountability: the State is liable for the failure to
perform the duties imposed upon it by the Constitution unless it can be shown that
there is compelling reason to deviate from that norm.” 69 Ultimately, based on the
reasoning in Van Duivenboden and Van Eeden, Harms JA held the state vicariously
liable for the plaintiff’s harm caused by the negligent and wrongful failure of state
employees to prevent the crime.
In summary, the reasoning in Van Duivenboden, as applied in subsequent cases, led

to the expansion of the state’s delictual liability for harm in situations where its
employees negligently and wrongfully failed to prevent crime. 70 The following section
will evaluate some of the aspects of this development that have received critical
attention from scholars, including the nature of the state’s delictual liability as well as
the consequences of the SCA’s reasoning in Van Duivenboden.
67 2004 (3) SA 305 (SCA) para 36.

68 Para 37.
69 Para 43.
70 Recent cases that have followed the reasoning in these cases include PE v Ikwezi Municipality 2016
(5) SA 114 (ECG); Minister of Safety and Security v Booysen (35/2016) [2016] ZASCA 201; Terblanche
v Minister of Safety and Security 2016 (2) SA 109 (SCA); Minister of Defence v Von Benecke 2013 (2)
SA 361 (SCA); Giesecke & Devrient Southern Africa (Pty) Ltd v Minister of Safety and Security 2012
(2) SA 137 (SCA); Minister of Safety and Security v Venter 2011 (2) SACR 67 (SCA); Ntombenkosi
Hlomza v Minister of Safety and Security 2011 JDR 0030 (ECM); Minister of Safety and Security v
Madyibi 2010 (2) SA 356 (SCA).
48
2.2.1.1.3 An evaluation of the state’s expanded delictual liability for harm due
to the negligent and wrongful failure of state employees to prevent
crime
a. Introduction
In this section attention will be given to aspects of the Van Duivenboden series of
cases that have received critical commentary from scholars. The first issue to be
considered is whether the nature of the state’s delictual liability was indeed vicarious. 71
This issue receives attention because some scholars have argued that these cases
are “in truth imposing direct liability” 72 on the state. To examine this contention, the
differences between vicarious and direct liability as well as the common-law
requirements for vicarious liability are briefly restated.
b. The distinction between direct and vicarious liability
If through A’s conduct he wrongfully and culpably causes B harm, then A has
committed a delict in respect of which he is directly, or personally, liable towards B. In
other words, liability is imposed directly upon A because it was he who wrongfully and
culpably caused B’s harm. It may therefore be said that the driving force behind the
imposition of direct liability is the notion of personal responsibility. 73 If B’s harm was
not wrongfully caused by A’s culpable conduct, then it would be unfair to oblige him to
compensate B. When considering imposing direct liability on a primary wrongdoer, a
court will have regard to the nature of his conduct and will provide him with the
opportunity to avoid liability by providing justifiable reasons for his conduct.
However, if A commits a delict against B, but C is required to compensate B for his

harm, then C is held vicariously liable. Vicarious liability may be described as an
instance of strict liability in delict, where one person is held liable for the harm
wrongfully and culpably caused by another person. 74 As an example of strict liability,
it is therefore an exception to the fault-based rule of personal responsibility that may
71 See Du Bois (2010) Tulane European and Civil Law Forum 174-175; Fagan (2008) SALJ 668-669; S
Wagener “K v Minister of Safety and Security and the increasingly blurred line between personal and
vicarious liability” (2008) 125 SALJ 673 675; L Boonzaier “State Liability in South Africa: A More Direct
Approach” (2013) 130 SALJ 330 330-368.
72 Boonzaier (2013) SALJ 342.
73 P Giliker Vicarious Liability in Tort – A Comparative Perspective (2010) 16-18.
74 K v Minister of Safety and Security 2005 (6) SA 419 (CC) para 24; Loubser & Midgley (eds) The Law
of Delict 383-392; Neethling & Potgieter Law of Delict 379-402.

49
be said to ground delictual liability in general. 75 The imposition of vicarious liability on

such a party may be justified on the basis of a variety of policy-based reasons which
will be discussed in paragraph 2.2.1.2.5 below. 76
When considering the potential vicarious liability of a defendant, a court will not pay
attention to his culpability and he will not be afforded the opportunity of advancing his
reasonable conduct as a justificatory defence to evade liability. Lastly, as indicated in
further detail below, to hold the defendant vicariously liable, it must nevertheless be
proven that the primary wrongdoer committed a delict.
c. The common-law requirements for vicarious liability
Vicarious liability may be attributed to a defendant on the basis of a legal relationship

that exists at the time of the wrongdoing between himself and the primary wrongdoer. 77
The common-law doctrine of vicarious liability is complex and has been a controversial
topic within South African law. 78 Its requirements, scope and application have been
widely debated, especially in the post-Constitutional era. 79 Although the application of
these requirements in recent case law will only be discussed in detail in paragraph
2.2.1.2.3 below, they are briefly summarised here to give a proper background against
which to respond to the question whether the recent judicial expansion of state
delictual liability involves direct or vicarious liability.
First, a plaintiff is required to prove a relationship between the wrongdoer and another
person, which warrants the imposition of liability. 80 Second, it must be proven that the
wrongdoer committed a delict. 81 Lastly, the delict must have occurred in the course
and scope of performing the defendant’s instructions and it must be for the defendant’s
75 Loubser & Midgley (eds) The Law of Delict 5; P Cane The Anatomy of Tort Law (1997) 51-52.
76 See also K v Minister of Safety and Security 2005 (6) SA 419 (CC) paras 21-22; J Neyers “A Theory
of Vicarious Liability” (2005) 43 Alberta Law Review 1 1-15.
77 S Wagener An Assessment of the Normative Bases for the Doctrine of Vicarious Liability in South
African Law, and the Implications for its Application Unpublished PhD thesis University of Cape Town
(2011); Giliker Vicarious Liability 6-7.
78 See H Wicke Vicarious Liability in Modern South African Law Unpublished LLM thesis University of
Stellenbosch (1997); Wagener Vicarious Liability.

79 Wagener Vicarious Liability. See also A Fagan “The Confusions of K” (2009) 126 SALJ 158; Wagener
(2008) SALJ 673; JA Linscott “A critical analysis of the majority judgment in F v Minister of Safety and
Security 2012 (1) SA 536 (CC)” (2014) 17(6) Potchefstroom Electronic Law Journal 2916-2949.
80 Loubser & Midgley (eds) The Law of Delict 30; Neethling & Potgieter Law of Delict 389.
50
benefit, or fall within the risk created by the defendant when establishing the
relationship with the wrongdoer. 82 Although the common law recognises various
relationships akin to employment as potentially giving rise to vicarious liability, 83 it is
the employer-employee relationship that is most likely to give rise to the delictual
liability of the state for harm arising from crime. 84
Plaintiffs who wish to hold the state vicariously liable for their harm are therefore
required to prove that (a) an employment relationship existed between the primary
wrongdoer and the state, (b) the employee committed a delict and (c) that the delict
was committed during the course and within the scope of employment. 85 The failure
to meet any of these requirements absolves the state from liability.
d. The nature of the state’s delictual liability in Van Duivenboden, Van Eeden,
Hamilton and Carmichele
This section contains a critical engagement with the views of academics regarding the
nature of the state’s delictual liability for harm arising from crime. This has been done
because these views, and the questions that they have prompted, have formed a
substantial part of the academic debate in the context of the state’s expanding delictual
liability for harm arising from crime and therefore merits analysis. Furthermore, it is
pointed out that the established scholarship does not provide a satisfying solution to
the problem of expanding state delictual liability on a practical level. Accordingly, it
may be said that there is a link between the nature of the state’s delictual liability
arising from crime and the creation of a statutory crime victim compensation scheme.
Although it is not the sole foundation of state liability, 86 section 1 of the State Liability
Act 20 of 1957 provides that the state is liable for “any wrong committed by any servant
83 The relationships recognised under South African law include employer and employee, principal and
agent, and motorcar owner and motorcar driver. See Neethling & Potgieter 389-400; Van der Walt &
Midgley Principles of Delict para 19; D Visser “Delict” in Francois du Bois (ed) Wille’s Principles of South
African Law 9 ed (2007) 1224–1227; H Wicke “Vicarious liability for agents and the distinction between
employees, agents and independent contractors” (1998) 61 THRHR 609 610–611.
84 Wicke Vicarious Liability 209-232.
85 K v Minister of Safety and Security 2005 (3) SA 179 (SCA); K v Minister of Safety and Security 2005
(6) SA 419 (CC); Minister of Safety and Security v F 2011 (3) SA 487 (SCA); F v Minister of Safety and
Security 2012 (1) SA 536 (CC).
86 For example, see section 60(1) of the South African Schools Act 84 of 1996.
51
of the state acting in his capacity and within the scope of his authority as such a
servant”. The orthodox interpretation of this section is that the state may only be held
vicariously liable for the delicts of its employees and that, on the wording of the Act,
there is no room for direct liability of the state. 87
However, a different interpretation of the wording of the Act is conceivable, i.e. one
that would allow for imposing direct liability on the state. 88 Because the state as a
juristic person can conduct itself only through its organs and employees (or “servants”,
in the language of the Act), it may be argued that it could be held directly liable if it is
proved that the state organ or employee acted within the formal scope of its authority
or when it acted in its official capacity as state organ or employee.
Recently, scholars have reconsidered the nature of the state’s delictual liability in Van
Duivenboden as well as the line of cases that followed in its wake. An overview of this
debate, and a critical evaluation thereof, is set out below.
Du Bois has described the decision in Van Duivenboden as follows: 89
“A subtle but vital shift takes place here, in which state liability is no longer viewed in terms of
the traditional vicarious liability paradigm of the common law model, but rather, á la civilian
systems, as a form of direct liability arising from an organizational failure or faute de service. It
is this implicit and unwitting paradigm shift that explains the very broad contours of liability
envisaged in this decision and the departure from the common law tradition, where liability
principles do not mark out the state as bearer of special responsibilities.”
This paradigm shift has been explained by reference to the emphasis which Nugent
JA placed on the duties of the state as employer as opposed to the duties of the
individual state employees and the expressed desire to give effect to the norm of state
accountability. 90 This emphasis, it is argued, appears out of place in the context of
determining vicarious liability where the pertinent question is whether the employee
had acted wrongfully and culpably in causing the victim’s harm, and not whether the
employer itself had so acted. Wagener summarises the argument as follows: 91
“A breach of an employer’s duties […] can only affect its personal liability. The breach of its
duty cannot make any difference to its vicarious liability, which is concerned with the duties of
87 J Neethling “Liability of the state for rape by a policeman: The saga takes a new direction” (2011)
Obiter 437; J Neethling & JM Potgieter “Deliktuele staatsaanspreeklikheid weens polisieverkragting”

2012 (9) Litnet Akademies 73 77.
88 WE Scott Middellike Aanspreeklikheid in die Suid-Afrikaanse Reg (1983) 200-201. See also
Froneman J’s minority judgment in F v Minister of Safety and Security 2012 (1) SA 536 (CC).
89 Du Bois (2010) Tulane European and Civil Law Forum 174-175 (references omitted).
90 Du Bois (2010) Tulane European and Civil Law Forum 174-175; Wagener (2008) SALJ 675.
91 Wagener (2008) SALJ 675.
52
the tortfeasant employee; that is, her delictual duties and employment duties. Her delictual
duties define whether she acted wrongfully, a finding of which being a necessary condition for
her liability (and her liability being a necessary condition for her employer’s vicarious liability).”
This argument has received limited judicial support. In an obiter comment in a

subsequent case, Minister of Safety and Security v F 92 (“F (SCA)”), Nugent JA
seemed to agree with Du Bois and Wagener and remarked that his judgment in Van
Duivenboden, as well as the judgments in Van Eeden, Hamilton and Carmichele
(SCA) “purport to be founded upon vicarious liability but might better be said to have
been founded upon direct liability of the State, acting through the instrument of its
employees.” 93
The argument was further endorsed in Froneman J’s minority judgment in F v Minister
of Safety and Security 94 (“F (CC)”), which dealt not with the state’s liability for the
negligent, wrongful failure of its employees to prevent crime, but with its liability for the
intentionally-committed crimes of its employees. 95 Froneman J was of the view that it
was time to “recognise that State delictual liability in circumstances where the State
has a general constitutional and statutory duty to protect people from crime is usually
‘direct’, and not ‘vicarious’ in the sense traditionally understood by that term.”96 This
was because the state invariably acted via its organs, i.e. state officials, when
performing public duties.
In other words, because the state is a juristic person that fulfils its public duties through
its various organs and employees, the execution of these public duties may be
attributed to the state and the state may therefore be held responsible for any such
acts which attract delictual liability. Froneman J thus suggested that the question
whether the state should be delictually liable in both the Van Duivenboden type of
cases as well as cases resembling the facts of F (CC) should “no longer be dealt with
as an aspect of vicarious liability but rather as part of the normal direct enquiry into
whether the elements of our law of delict are present when instruments of the State
act.” 97
92 2011 (3) SA 487 (SCA). See paragraph 2.2.1.2.3 (c) below.

93 2011 (3) SA 487 (SCA) para 34.
94 2012 (1) SA 536 (CC). See paragraph 2.2.1.2.3. (d) below.
95 See paragraph 2.2.1.2 below.
96 2012 (1) SA 536 (CC) para 89.
97 Para 89.
53
Neethling and Potgieter summarise the argument in favour of direct state liability as
follows: 98 the state is a juristic person that can only act through its organs as
instruments and the officials who form a part of those organs. The police service
functions as a state organ and its members are subjected to specific constitutional and
statutory duties. Conduct of the police service and various police officers is conduct
for which the state is held liable because it constitutes the state’s conduct. This means
that because the conduct of the police service or its officers constitutes the state’s
conduct, the latter may be held directly liable.
These scholars reject the argument that the Van Duivenboden series of cases may be
said to have imposed direct state liability. 99 Referring to the remarks made by Nugent
JA and Froneman J, they correctly emphasise the failure of both judges to explain the
difference between establishing whether the conduct of state employees qualify as the
conduct of state organs for the purposes of direct state liability and determining
whether a state employee conducted himself within the course and scope of his
employment for the purposes of vicarious liability. 100 In light of this shortcoming, they
appropriately contend that the shift to direct state liability can only lead to confusion
and create legal uncertainty in an area where clarity existed beforehand. 101 According
to them, it was clear that, in Van Duivenboden, Van Eeden, Hamilton and Carmichele
SCA, it was the employees who, while acting in course and scope of their employment,
negligently breached their duty to prevent crime and that the state was thus correctly
held vicariously liable. 102
They also contend that certainty and precedent has been established in the series of
cases dealing with the negligent wrongdoing of police employees and that, in these
cases, courts have “consistently maintained” 103 that the state should be held
vicariously liable for the negligent wrongdoing of police officials. They conclude that,
98 Neethling & Potgieter Litnet Akademies (2012) 78. See also Verloren van Themaat Staatsreg (1968)
468; D’Oliviera State liability for the wrongful exercise of discretionary powers Unpublished LLD
dissertation. University of South Africa (1976) 477-488.
99 See Neethling & Potgieter (2012) Litnet Akademies 77-82.
100 Neethling & Potgieter (2012) Litnet Akademies 77-82; Scott (2011) TSAR 777-784; Neethling (2012)
THRHR 627-631; Scott Middellike Aanspreeklikheid 200-201.

101 Neethling & Potgieter (2012) Litnet 79. See also Neethling (2011) Obiter 436-437.
102 Neethling (2011) Obiter 436-437.
103 436-437.
54
in these cases, the vicarious liability approach “has delivered satisfactory results” 104
and that it “is questionable whether a radical deviation from this approach is
justified.”105
Nevertheless, Neethling and Potgieter appear to accept the argument that the state
may be held directly liable where its employees intentionally deviate from their
employment duties (the category of cases examined in paragraph 2.2.1.2 below). 106
Such an exception centres on Froneman J’s argument that factors that have typically
been used to determine whether an employee’s intentional crime may be regarded as
a delict committed during the course and scope of employment are “at odds in
determining the secondary, vicarious State liability”, 107 but can “legitimately be
assessed in determining the primary wrongfulness of the conduct of the State, through
its officials, in a delictual action based on direct liability”. 108 Neethling and Potgieter
therefore contend that direct state liability, with an enquiry into the wrongfulness of the
state’s direct liability, potentially provides a more acceptable basis for the state’s
liability when compared to vicarious liability. 109
Notwithstanding this possibility, the CC has clearly opted for vicarious liability as the
preferred paradigm for state liability in the context of the negligent, wrongful failure of
their employees to prevent harm as well as in cases where their employees
intentionally commit crimes. Courts evidently regard the nature of the state’s liability
as vicarious and therefore continue to apply vicarious liability requirements to
determine the state’s delictual liability in both contexts. 110 Support for Froneman J’s
argument therefore seems to have academic interest only and it appears likely that
vicarious liability will continue to form the basis of the state’s liability in future cases.111
104 Neethling & Potgieter (2012) Litnet Akademies 74. See also J Scott “Die Hoogste Hof van Appèl
Smoor Heilsame Regsontwikkeling” (2011) 4 TSAR 773 777-784; Neethling (2012) THRHR 627-631.
105 Neethling & Potgieter (2012) Litnet Akademies 74.
106 Neethling & Potgieter (2012) Litnet Akademies 82-83. See also Scott (2011) TSAR 777-784;
Neethling (2012) THRHR 627-631.

107 2012 (1) SA 536 (CC) para 116.
108 Para 116.
109 Neethling & Potgieter (2012) Litnet Akademies 82; F v Minister of Safety and Security 2012 (1) SA
536 (CC) paras 112-113.

110 See also paragraph 2.2.1.2 below.
111 See also PE v Ikwezi Municipality 2016 (5) SA 114 (ECG); Minister of Safety and Security v Booysen
(35/2016) [2016] ZASCA 201; Terblanche v Minister of Safety and Security 2016 (2) SA 109 (SCA);
Minister of Defence v Von Benecke 2013 (2) SA 361 (SCA); Giesecke & Devrient Southern Africa (Pty)
Ltd v Minister of Safety and Security 2012 (2) SA 137 (SCA); Minister of Safety and Security v Venter
55
At any rate, the debate concerning the preferred paradigm for state liability will not
provide a practical contribution towards solving the problem of the continued
expansion of state delictual liability for harm arising from crime. Essentially, the
theoretical nature of the state’s liability does not change the fact that, in cases like
those discussed above, it is the state that is held liable for harm actually committed by
criminals rather than the criminals themselves. Indeed, it fails to pay attention to the
question whether the expanded state delictual liability provides a satisfactory solution
to the issue of crime victim compensation. Therefore, the reasons for Froneman J’s
preference for direct state liability will not be analysed in further detail in this
dissertation.
Lastly, attention may be given to the argument by Boonzaier, who regards the
argument that the nature of the state’s liability in the Van Duivenboden cases is
vicarious as “startling”, “unconvincing” and as taking “no account of the grave
problems” posed by the reasoning in these cases. 112
Agreeing with the argument that these cases are “in truth imposing direct liability”, 113
Boonzaier argues that the only duties identified by the court in Van Duivenboden were
the state’s constitutionally-imposed duties, and because the imposition of vicarious
liability upon the state necessitates the recognition of a legal duty on the police officers
in question, the state’s liability cannot be regarded as vicarious in nature. 114 In order
to reach a vicarious liability outcome in these cases, one would have to “manufactur[e]
a legal duty resting on the police officers”. 115
He goes further, arguing that there was no legal duty116 resting on the police officers
in Van Duivenboden and “[w]here there is no duty grounded on recognised principles
of private law, and as such there is no delict which can be imputed to the state, one
may not manufacture one simply to generate the right outcome on vicarious
2011 (2) SACR 67 (SCA); Ntombenkosi Hlomza v Minister of Safety and Security 2011 JDR 0030
(ECM); Minister of Safety and Security v Madyibi 2010 (2) SA 356 (SCA)
112 Boonzaier (2013) SALJ 354. See also Neethling (2011) Obiter 437.
113 Boonzaier (2013) SALJ 342.
114 340.
115 340.
116 341: With regard to the situation in which a policeman fails to deprive “known threats of their
weapons”, Boonzaier argues that “the official’s duties should be grounded on the common-law duty to
take reasonable care in the exercise of one’s profession” and then notes that “[in] South African law no
general such duty has yet been recognised.”
56
liability.” 117 Correspondingly, the SCA’s decision to impose vicarious liability on the
state in Hamilton is rejected on the basis that Van Heerden AJA apparently
“convert[ed] a duty which in truth rested on the state generally (that is, the duty to
prevent dangerous people receiving firearm licences) into a duty resting on the
relevant individual officers.” 118
Continuing this line of criticism on the characterisation of the state’s liability as

vicarious, Boonzaier rejects the court’s reasoning in Van Eeden as “even more
incongruous”119 since, in this case, the court apparently failed to identify the individual
employee responsible for having committed the delict. Instead, the “court refers in
general terms to the wrongdoing of ‘the police’ [with the] result that vicarious liability is
imposed following almost exclusive discussion of the state’s duties and no mention
whatsoever of any individual tortfeasant employee.” 120 Similarly, the decision in Van
Duivenboden is faulted on the basis that the omission on the part of the police “was
never ascribed to any police officer” 121 and that it was the “negligence of ‘the police’
generally which was ultimately found to have caused the harm to the plaintiff.” 122
Boonzaier’s outright rejection of the decision to regard the state’s delictual liability as
vicarious in nature is not well founded. Although the court in Van Duivenboden does
not expressly ascribe the failure on the part of the police to a specific police officer,
considerable time is spent in describing the nature of various specific police officers’
conduct. 123 The court set out the relevant provisions of the Arms and Ammunition Act
which allowed for the deprivation of firearms, and noted that “various police officers
were in possession of information that reflected upon Brooks’s fitness to be in
possession of firearms.” 124 The court also referred to the circumstances under which
superintendent Hefer and several members of the Internal Stability Unit came to have
knowledge of Brooks’ threats to kill himself and members of his family. 125
117 341.
118 345.
119 342.
120 342.
121 342.
122 342.
123 2002 (6) SA 431 (SCA) paras 12-20.
124 Para 4.
125 The court takes note of the fact that Hefer spoke to Brooks’ wife, who told him that Brooks should
not be in possession of firearms. Hefer had explained the statutory procedure for Brooks’ disarmament
and offered to take a statement from Brooks’ wife.
57
Furthermore, the court considered the conversations that occurred between one of the
deceased and sergeant Goldie, responsible for the administration of matters relating
to firearms at the Milnerton Police Station, who, after being informed of Brooks’
drinking problems and propensity for violence, advised the deceased of certain
available measures to be taken. 126 Finally, Brooks’ deceased wife also approached
sergeant Roos at the Bothasig Police Station, who referred her to warrant officer
Jenkins, who was in command of the police station and advised her to lay a charge
against Brooks so as to allow the police to act against the latter. 127 All of this suggests
that the court did take into account the conduct of the police officers involved as well
as their respective legal duties.
Similarly, in Van Eeden the court did not point out specific police officers by name.
Nonetheless, taking into consideration the fact that vicarious liability had been
conceded by the state, it would be reasonable to infer that, when the court considered
whether “members of the South African Police Service owed [the plaintiff] a legal
duty”, 128 it had in mind those officers who were, at the time, responsible for securing
the relevant criminal’s cell door.
Furthermore, Boonzaier’s argument that the SCA “manufactured” a legal duty which
did not exist and similarly “converted” a legal duty of the state into a legal duty resting
on specific employees in Hamilton should be rejected on the basis of prior decisions
of the same court in which it held that, as expressed in Van Duivenboden, “it was the
law that assault is unlawful, that the police are under a positive duty in law to protect
citizens from assault when in a position to do so and that, if they negligently fail to do
so, the State will be liable in damages.” 129
In conclusion, the following remarks may be made in response to the academic

debate. Du Bois, Wagener, Boonzaier, Nugent JA in F (SCA) and to some extent
Froneman J in F (CC) hold that a possible interpretation of the expansion of the state’s
126 Goldie asked her whether her husband had firearms and, when she replied in the affirmative, advised
that if she felt threatened she should make a sworn statement and an enquiry would be held in terms
of section 11 of the Arms and Ammunitions Act.
127 Jenkins told her that she would need to prefer a charge against Brooks and that unless she did so
the hands of the police were tied. Dawn told Jenkins that she was unwilling to prefer charges because
to do so would jeopardise her marriage and there the matter was left.
128 2003 (1) SA 389 (SCA) 394.
129 2002 (6) SA 431 (SCA) para 33. See also Minister van Polisie v Ewels 1975 (3) SA 590 (A).
58
delictual liability for the wrongful and negligent causation of harm arising from crime is
that, despite the court’s references to vicarious liability, its reasoning was nevertheless
confused. These scholars take this position because the judgments of the SCA in the
Van Duivenboden series of cases focused on the legal duties of the state as employer
as opposed to the employee’s duties. For the reasons set out below, their argument
is not persuasive.
It may be conceded that none of the abovementioned cases expressly applied the
requirements of vicarious liability to the facts. Emphasis was placed on the legal duties
of the employer and the necessity of holding the employer accountable. However, it
does not necessarily follow that the court sought to hold the state directly liable.
Indeed, it ought to be remembered that these cases focused on only one of the three
requirements for vicariously liable, namely whether the state employees had
committed a delict. More specifically, the central question was whether the respective
employees’ negligent failure to prevent harm could be regarded as wrongful. The other
two requirements – the existence of an employer-employee relationship and
determining whether the employee’s delict had occurred in the course and scope of
their employment – was not in issue and therefore required no attention. If they did, it
would perhaps have been more apparent that the court dealt with vicarious liability,
which would have placed an end to any question regarding the nature of the state’s
liability then and there.
It was in the context of determining wrongfulness that the court took into account
various legal and public policy considerations, constitutional rights and norms. The
focus on the nature of the state’s legal duties was a relevant consideration within this
framework, because, at the very least, it also shaped and informed the duties of its
employees and thus the wrongfulness of their respective failures to execute their
duties to prevent crime. The reference by the SCA to the state’s legal duties is not
convincing evidence that the court sought to hold the state directly liable, but may be
regarded as a relevant consideration in the determination of wrongfulness and
ultimately whether a delict had been committed – one of the three requirements for
vicarious liability.
It is contended that this interpretation of these cases, and therefore also the nature of
the state’s delictual liability in cases dealing with the negligent, wrongful failure of state
59
employees to prevent crime, is aligned with the actual statements recorded in the
various judgments. For instance, in Van Duivenboden, Nugent JA concluded his
reasoning on the question of wrongfulness as follows: the “negligent conduct of police
officers in [the] circumstances [of the case was] thus actionable and the State [should
therefore be held] vicariously liable for the consequences of any such negligence”. 130
In Van Eeden the court was not requested to consider the nature of the state’s delictual
liability because the Minister of Safety and Security conceded vicarious liability.
Accordingly, Vivier ADP did not deal with any of the requirements for vicarious liability.
Likewise, in Carmichele SCA, Harms JA paid no attention to the requirements for
vicarious liability and quoted extensively from Nugent JA’s judgment in Van
Duivenboden to confirm the existence of legal duties on the part of the state employer.
This was done in an attempt to determine wrongfulness. Harms JA concluded that the
“vicarious liability of the Ministers is not in issue.” 131
In conclusion, this dissertation supports the argument made by Neethling and

Potgieter, namely that the nature of the state’s delictual liability in the Van
Duivenboden series of cases is, and continues to be, vicarious. Whereas it might be
possible to hold the state directly liable in the line of cases dealing with the
intentionally-committed crimes of state employees, the courts do not appear likely to
entertain this notion. At any rate, as mentioned above, the debate is of an academic
nature and it has failed to address the pertinent issue, which is that, whether direct or
vicarious, the state’s liability for harm arising from crime – actually committed by third
parties – have expanded considerably and continue to do so. From a crime victim
compensation perspective, the focus should therefore be on the following question: is
this a satisfactory situation or should it be rethought with a view to investigating an
alternative solution? Before concentrating specifically on answering this question, 132
this section of the chapter (focusing on the expansion of state delictual liability for the
negligent, wrongful failure of state employees to prevent crime) will be concluded with
an evaluation of the criticism of the SCA’s reasoning in Van Duivenboden.
130 2002 (2) SA 431 (SCA) para 22 (own emphasis).

131 2004 (3) SA 305 (SCA) footnote 14 (own emphasis).
132 This question receives specific attention in paragraphs 2.2.1.1.4 and 2.2.1.2.5 below.
60
e. An evaluation of criticism of the state’s expanded delictual liability for the

negligent and wrongful failure of its employees to prevent crime
i. Fagan’s criticism: the instrumentalisation of state employees and the

production of arbitrary outcomes
Besides inviting a debate on the nature of its liability, the expansion of the state’s
delictual liability arising from the negligent, wrongful failure of its employees to prevent
crime has received criticism which, briefly stated, maintains that the reasoning in Van
Duivenboden instrumentalises state employees and suggests that it may produce
arbitrary outcomes in future cases.
Fagan has criticised the Van Duivenboden reasoning as “instrumentaliz[ing] the state
employee whose failure properly to do his or her job happens to cause the state’s
failure to discharge its constitutionally-imposed protective duty.” 133 In line with the
argument raised by Du Bois and Wagener and discussed in the preceding section,
Fagan suggests that, in its decision to impose vicarious liability on the state, the court
was required to consider the conduct of the state’s employees and whether their
negligent failure to act amounted to the wrongful causation of the plaintiff’s harm.
However, he argues, the court failed to do so and, according to him, imposed vicarious
liability on the basis of certain legal duties owed by the state employer to the public.
He maintains that, because the court emphasised the nature of the employer’s duties,
paid little attention to the nature of their employees’ conduct and paid almost no
attention to the question whether the employees breached their respective legal
duties, the court’s approach ultimately amounts to treating the state employees as the
mere instruments of their employers. The employees are treated not as ends in
themselves but as a means to an end; “that end being the need to hold the state
accountable for its failure to discharge its duty.” 134 This is ironic, he argues, because
the CC, “applauded for putting dignity at the centre of its jurisprudence”, 135 has
herewith “initiated a development in the law of delict which is wholly at odds with
133 Fagan (2008) SALJ 669-670.

134 670.
135 671.
61
that.”136 Before evaluating this criticism, consider the example he uses to illustrate his
argument. 137
Suppose that the Mountain Club of South Africa (“MCSA”), having grown weary of the
ongoing criminal activity on Table Mountain, decided to employ security guards to
improve the safety on the mountain. Suppose further that security guard A is required
by his employment contract to secure a specific area on the mountain each morning
on weekdays. If he fails to do so, the MCSA may terminate his contract. B, a hiker, is
assaulted one morning during the week in the area which A is required to secure. At
the time A was sleeping under a bush while he was supposed to be on duty in a
neighbouring ravine.
Fagan contends that an attempt by B to argue that A has committed a delict (and thus
to hold the MCSA vicariously liable) would fail because, although A’s failure to prevent
the crime may be regarded as negligent, the causation of B’s harm cannot be viewed
as wrongful. 138 In contrast, he suggests, if A’s employer was not a private organisation
aimed at improving security on the mountain but the Minister of Safety and Security,
then B’s prospects of success with a delictual claim against A would improve
significantly. The likelihood of successfully instituting such a delictual claim increases
because, according to him, B would then be entitled to rely on the reasoning developed
in Van Duivenboden. Fagan explains: 139
“So, [the security guard] did not act wrongfully and thus committed no delict because he was
employed by the MCSA. But he would have acted wrongfully and would thus have committed
a delict if he had been employed by the state. And the only reason for the difference in the law’s
treatment of [the security guard] is one that has nothing to do with him or what he did or did not
do. For the only reason for the difference is that, in the latter but not the former case, [the guard]
is capable of being used as an instrument or vehicle for attributing liability to the state.”
Fagan therefore implies that the reasoning by the court in Van Duivenboden may
produce arbitrary outcomes in the application of the vicarious liability doctrine:
whereas the state may be held vicariously liable for the negligent failure of the police
officer to prevent crime, vicarious liability will not be imposed on the MCSA for their
guard’s similar negligent failure. Also, he objects to the reasoning because it
136 671.
137 670-671.
138 670.
139 670-671.
62
instrumentalises the employee, as a result of which the employee’s dignity is also

undermined. The following section responds to these criticisms.
ii. An evaluation of Fagan’s criticism regarding the reasoning in Van

Duivenboden
First, in reaction to the argument that the Van Duivenboden reasoning may produce
arbitrary outcomes: the assertion that the crime victim’s claim against the MCSA would
fail because the plaintiff would not be able to prove wrongfulness is not substantiated
other than by implying that the plaintiff would not be entitled to rely on the Van
Duivenboden reasoning. However, it is not self-evident that the security guard’s
negligent failure to prevent harm could not be viewed as wrongful and that the MCSA,
in turn, could not be held vicariously liable.
To assess his argument, it is worthwhile to restate the approach to determining

wrongfulness. In Le Roux v Dey (Freedom of Expression Institute and Restorative
Justice Centre as Amici Curiae) the CC held as follows: 140
“In the more recent past our courts have come to recognise […] that in the context of the law
of delict: (a) the criterion of wrongfulness ultimately depends on a judicial determination of
whether — assuming all the other elements of delictual liability to be present — it would
be reasonable to impose liability on a defendant for the damages flowing from specific
conduct; and (b) that the judicial determination of that reasonableness would in turn depend
on considerations of public and legal policy in accordance with constitutional norms.”
Therefore, whether a specific guard’s negligent failure to prevent crime may be

regarded as wrongful for the purposes of determining his personal delictual liability will
depend on an array of policy considerations and constitutional norms. Arguably, one
relevant consideration is the nature of the employee’s duty, which, in turn, may be
deduced from the employment contract concluded by the employer and the employee
as well as paying attention to the nature of the employer’s duties. In other words, one
of the considerations that may inform the court’s value judgment concerning the
reasonableness of imposing delictual liability on the employee may be the nature of
the employer’s duties.
1402011 (3) SA 274 (CC) para 122. See also Mashongwa v Passenger Rail Agency of South Africa
2016 (3) SA 528 (CC) para 23; Country Cloud Trading CC v MEC, Department Of Infrastructure
Development 2015 (1) SA 1 (CC) para 21; Loureiro v Imvula Quality Protection (Pty) Ltd 2014 (3) SA
394 (CC) para 53.
63
Returning to Fagan’s example, the question seems to be whether, having regard to

legal and public policy considerations as well as constitutional norms, it would be
reasonable to impose delictual liability on the MCSA guard for his negligent failure to
prevent the crime in the gorge. On the facts given in his example, it may be that a court
would not impose delictual liability on the guard. However, this does not mean that the
application of the reasoning in Van Duivenboden will result in arbitrary outcomes in
different cases. It merely illustrates the application of the criteria laid down for
wrongfulness: because the policy considerations and constitutional norms that are at
play in establishing wrongfulness may differ from one factual scenario to another,
different outcomes may be reached. When dealing with a police officer, the
considerations mentioned in Van Duivenboden will necessarily be applicable, while
they do not necessarily find application when the court assesses the MCSA guard’s
negligent failure.
In other words, the different outcomes that may be reached in similar situations are a
function of the application of the broader wrongfulness enquiry. The production of
different results is not because the law’s treatment of the MCSA security guard is due
to a reason that has “nothing to do with him or what he did or did not do.” 141 On the
contrary, the application of the wrongfulness enquiry takes due notice of what he did
and what he was required to do. In this context it is worthwhile to emphasise that a
MCSA guard, unlike a police officer, is not tasked with a statutory and constitutional
duty to protect members of the public from crime. The fact that delictual liability may
be imposed on a police officer in any of the abovementioned cases, but refused with
regards to the MCSA guard in Fagan’s example – despite the fact that both negligently
fail to comply with their respective duties – may therefore be justified on the basis that
what they are required to do differ in a fundamental way.
Lastly, it might also be said that, under different factual conditions, a MCSA guard’s
negligent failure to prevent crime could be regarded as wrongful, notwithstanding the
fact that his employer is not tasked with the same constitutional duties as the state.
This could occur where there are other policy considerations that warrant the
imposition of delictual liability. For example, it may be the case that a special
relationship of trust comes to exist between the MCSA, its guards and hikers on Table
141 Fagan (2008) SALJ 670-671.

64
Mountain. 142 Furthermore, it could be argued that the expectation was created that the
plaintiff’s interests would be protected, at least insofar as his bodily integrity is
concerned and that such a consideration warrants the imposition of delictual liability. 143
Perhaps the fact that the area in which the assault occurred was under the control of
the MCSA could be taken into account. 144 Fagan’s apparent view that a MCSA guard’s
negligent failure to prevent the harm could never be considered as wrongful must
therefore be rejected.
iii. Testing Fagan’s criticism of the reasoning in Van Duivenboden against

recent judgments relating to the negligent failure of private security guards
to prevent crime
Moving attention slightly away from Fagan’s example, it may be considered what the
situation would be if the guard in question was appointed by a private security
company. Could the negligent failure of such a guard to prevent harm be regarded as
wrongful? If not, would it mean that the Van Duivenboden reasoning indeed produces
arbitrary outcomes?
To answer these questions, we may first examine the judgment of the SCA in Viv’s
Tippers (Edms) Bpk v Pha Phama Staff Services (Edms) Bpk t/a Pha Phama Security
(“Viv’s Tippers”), 145 where the plaintiff’s motor vehicle was stolen from premises in
respect of which the occupier had contracted with a company to provide security
services. The SCA had to consider whether the owner of the vehicle could institute a
delictual claim against the security services company for the harm it had suffered as
a result of the negligent failure by the company’s security guard to keep the vehicle
safe. Categorising the theft of the vehicle as pure economic loss, the court considered
whether it would be reasonable to impose delictual liability on the security guard and,
142 Greenfield Engineering Works (Pty) Ltd v NKR Construction (Pty) Ltd 1978 (4) SA 901 (N); Bayer
South Africa (Pty) Ltd v Frost 1991 (4) SA 559 (A).
143 Compass Motors Industries (Pty) Ltd v Callguard (Pty) Ltd 1990 (2) SA 520 (W); Longueira v
Securitas of South Africa (Pty) Ltd 1998 (4) SA 258 (W).

144 Administrateur, Transvaal v Van der Merwe 1994 (4) SA 347 (A).
145 (2010) (4) SA 455 (SCA).
65
in turn, vicarious liability, on his employer. 146 Accordingly, the court considered the
following policy reasons.
First, Lewis JA held that the guard’s control over the truck at the time of the theft, the
reasonable foreseeability of the harm as well as its preventability were irrelevant legal
considerations within this context. 147 Further, she took the view that imposing liability
in casu might lead to an unwarranted increase in the fees charged by private security
firms and, also that it may potentially expose the providers of security services to
unlimited liability. 148 In the judgment of Lewis JA, these policy considerations weighed
against the imposition of liability on the security guard and wrongfulness was thus
denied.
In addition, the court took into account the role played by an exclusion clause in the
contract between the security services company and the party in occupation of the
premises. This clause excluded the security services company’s liability against third
parties for any harm arising from the provision of security services. Despite earlier
judgments that stated otherwise, Lewis JA held that the exclusion clause in the
security services agreement operated effectively as against the non-contracting
plaintiff: 149
“How can the contractual arrangement between the owner of the premises and the security
provider be irrelevant to the question whether a duty should be imposed on the security provider
to third parties whose property is stolen? [...] The terms of that contract must, in my view, play a
role in assessing what the convictions of the community would be in relation to affording a claim
for compensation to a non-contracting party.”
Therefore, even though the SCA seemed to indicate that, on policy grounds, the
security guard’s negligent failure to prevent crime did not amount to wrongfulness, the
court held that the exclusion clause in any event indemnified the security services
company from any potential delictual claim brought against it by a third party victim of
crime.
146 This categorisation was subsequently rejected by the SCA in Freddy Hirsch Group (Pty) Ltd v
Chickenland (Pty) Ltd 2011 (4) SA 276 (SCA) para 37.
147 Viv’s Tippers (Edms) Bpk v Pha Phama Staff Services (Edms) Bpk t/a Pha Phama Security (2010)
(4) SA 455 (SCA) para 12. See also A Price “The Contract/Delict Interface in the Constitutional Court”
(2014) 25 Stellenbosch Law Review 501-510.
148 (2010) (4) SA 455 (SCA) para 26.
149 Para 13.
66
At first glance, one may regard the outcome reached in Viv’s Tippers in respect of
wrongfulness as giving support to Fagan’s claim that the Van Duivenboden reasoning
may produce arbitrary outcomes. Along this line, it may be argued that, if the security
guard was employed by the Minister of Safety and Security, then his negligent failure
to prevent crime would have been regarded as wrongful which, in turn, would have
facilitated the imposition of vicarious liability. However, because A is employed by a
private security services company, the court cannot rely on the Van Duivenboden
reasoning.
For the reasons set out below, it is argued that the SCA’s conclusion regarding the
wrongfulness of the security guard’s negligent failure to prevent crime in Viv’s Tippers
does not mean that Fagan is correct in implying that the application of the Van
Duivenboden reasoning produces arbitrary outcomes in similar factual scenarios.
First, in Viv’s Tippers, the SCA arguably reached the wrong conclusion regarding
wrongfulness. It may be argued that the control which the guard exerted over the
relevant truck was a consideration pointing in favour of imposing liability. 150
Furthermore, Lewis JA’s contention that reasonable foreseeability and reasonable
preventability were irrelevant considerations in the context of wrongfulness is not in
line with established precedent. 151 In fact, it is at odds with her own earlier judgment
in Premier, Western Cape v Faircape Property Developers (Pty) Ltd, where she
asserted that the “foreseeability of harm to the plaintiff is also a relevant consideration
in the determination of lawfulness”. 152 Additionally, it could be argued that the creation
of an expectation or impression that the security services company would protect the
plaintiff’s interests was a policy consideration pointing towards imposing delictual
liability. 153
Another consideration that led the court to deny wrongfulness, the so-called fear of
unlimited liability, is exaggerated. Since the court first handed down a decision in this
150 Compass Motors Industries (Pty) Ltd v Callguard 1990 (2) SA 520 (W) 526-527; Leon Bekaert
Southern Africa (Pty) Ltd v Rauties Transport (Pty) Ltd 1984 (1) SA 814 (W).
151 See Loubser & Midgley (eds) The Law of Delict 223; Neethling & Potgieter Law of Delict 65-66.
152 Premier, Western Cape v Faircape Property Developers (Pty) Ltd (41/2002) [2003] ZASCA 42 paras
42, 46 (references omitted).

153 Compass Motors Industries (Pty) Ltd v Callguard 1990 (2) SA 520 (W); Loubser & Midgley (eds) The
Law of Delict 222; Neethling & Potgieter Law of Delict 72-73.

67
context in Compass Motors Industries (Pty) Ltd v Callguard, 154 there has only been
one other decision in which a plaintiff has brought a delictual claim for damages
following the theft of his motor vehicle after the negligent, wrongful failure of a security
guard to prevent crime. 155 This hardly constitutes a flood of litigation.
In other words, if the court had taken the above considerations into account, it could
easily have arrived at the conclusion the security guard’s negligent failure to prevent
crime was wrongful on the facts, regardless of the Van Duivenboden reasoning or the
fact that the guard was not an employee of the state.
Lastly, the court’s interpretation of the role which the exclusion clause played may be
rejected on the basis that it seems contestable to argue that an exclusion clause in a
contract between A and B may affect the delictual liability of A as against C.
There is another reason why the judgment in Viv’s Tippers should not be seen as
providing support for Fagan’s argument, which comes to the fore in a subsequent
judgment by the CC and which also dealt with the provision of security services by a
private security company. In Loureiro v iMvula Quality Protection (Pty) Ltd
(“Loureiro”), 156 the plaintiffs instituted delictual and contractual claims against the
defendant, a private security company for the harm it had suffered after an on-duty
security guard employed by the latter had allowed armed robbers, pretending to be
police officers, into the plaintiffs’ residence whereafter they assaulted the plaintiffs and
stole some of their property totalling approximately R11 million.
The CC held that, taking into account policy considerations and constitutional norms,
the security guard’s negligent failure to prevent crime was wrongful. 157 It reasoned as
follows: 158
“There are ample public policy reasons in favour of imposing liability. The constitutional rights
to personal safety and protection from theft of or damage to one’s property are compelling
normative considerations. There is a great public interest in making sure that private security
companies and their guards, in assuming the role of crime prevention for remuneration,
succeed in thwarting avoidable harm. If they are too easily insulated from claims for these
harms because of mistakes on their side, they would have little incentive to conduct
themselves in a way that avoids causing harm. And policy objectives (such as the deterrent
154 1990 (2) SA 520 (W).

155 Longueira v Securitas of South Africa (Pty) Ltd 1998 (4) SA 258 (W).
156 2014 (3) SA 394 (CC).
157 Para 55.
158 Para 56.
68
effect of liability) underpin one of the purposes of imposing delictual liability. The convictions
of the community as to policy and law clearly motivate for liability to be imposed.”
This conclusion was reached despite the fact that the role of the private security
service industry was distinguished from that of the state, even though it fulfilled
functions comparable to those falling within the domain of the police. 159 Nevertheless,
this distinction – concerning the difference in the duties of the state and a private
security services company as employers, and the resultant, differentiating effect this
may have on the duties of respective entities’ employees – did not lead the court to
produce a different outcome to the one reached in Van Duivenboden.
Loureiro therefore provides a positive answer to the first question phrased above: the
negligent failure of a private company’s security guard to prevent crime could be
regarded as wrongful. In fact, it is arguable that this extract suggests that some of the
constitutional rights highlighted in the Van Duivenboden series of cases may similarly
apply where the guard is appointed by a private security services company and not
the state. The court makes reference to the “constitutional rights to personal safety
and protection from theft of or damage to one’s property”, 160 which conceivably
includes those rights referred to in Van Duivenboden (see paragraph 2.2.1.1.2 above).
In summary, this judgment undermines the validity of Fagan’s argument.
iv. Concluding remarks on Fagan’s criticism regarding the reasoning in Van

Duivenboden
Recent case law appears to support the view that the difference between the identity
of a private security guard and a police officer does not automatically mean that the
reasoning in Van Duivenboden produces arbitrary outcomes. If the Minister of Safety
and Security is held vicariously liable because on certain facts his employee’s
negligent failure to prevent crime is regarded as wrongful, but a private security
services company is not held vicariously for the negligent failure of one of its guards
to prevent crime in comparable circumstances, it does not mean that the different
outcomes may be labelled as arbitrary. Instead, the different outcomes will be a
159 Paras 3-4.

160 Para 56.
69
function of the application of the established criteria for wrongfulness, i.e. relevant
policy considerations and constitutional rights.
Furthermore, this appears to be theoretically sound considering the fact that there may
very well be significant differences between scenarios where the Minister of Safety
and Security is the employer as opposed to a private security company. One such
difference lies in the fact that a police officer has a constitutional duty to protect all
members of the public from crime, whereas a private security guard’s duties are set
out in the contract which it concludes with his employer. 161 As opposed to a general
duty to promote safety and security for all members of the public and to prevent crime
to all members of the public, the private security guard’s duties are circumscribed by
the contract it (or typically its employer) concluded with a contracting party who pays
for those limited services. In addition to limiting the number of people to whom the duty
is owed, the security services contract may also limit the manner, place and time in
which such a duty is required to be performed. Although both the security services
company and the state have crime prevention duties, there is a considerable
difference in the nature and scope of these duties. This, in turn, may have a significant
impact on the duties expected to be performed by the employees of the two entities.
Furthermore, it should be emphasised that, when determining whether the employee’s

negligent failure to prevent harm is wrongful, courts may have regard to the
constitutional norm of state accountability. This consideration is absent in the case of
a private security services company, presumably because, among other things, these
companies do not exercise a public power and do not owe their duties to all members
of the public. If a security services company breaches the terms of its contract,
accountability will follow in the form of contractual liability.
Against this background, it does not appear problematic that in one case a police
officer’s negligent failure to prevent crime will be regarded as wrongful whereas a
security guard’s negligent failure may not be so regarded.
Fagan also criticised the Van Duivenboden reasoning because it apparently

instrumentalises employees. In response, as argued above, an employee’s
contractual duty to his employer should also be a relevant legal consideration when
161 See also Price (2014) Stellenbosch Law Review 509.

70
determining wrongfulness for the purposes of delictual liability towards third parties.
Obviously, the nature of the employee’s duties will be informed by the nature of his
employer’s identity. Therefore, the court will focus on the work that the employee has
elected, and is required to do, as well as other relevant considerations related to his
failure to prevent harm. Viewed from this perspective, the employer’s identity becomes
a relevant consideration without instrumentalising the employee and it accordingly
cannot be said that the court will ignore the employee’s dignity. For these reasons,
Fagan’s instrumentalisation argument should also be resisted.
In summary, the finding of delictual liability in respect of a police officer who negligently
fails to prevent harm is a function of the application of the wrongfulness enquiry, i.e.
taking into account legal and public policy considerations and constitutional norms to
decide whether it is reasonable to impose liability on the relevant negligent officer.
Consequently, it may be said that the reasoning in Van Duivenboden does not produce
arbitrary outcomes insofar as the employer’s identity and the concomitant legal duties
may be interpreted as influencing the question whether the failure to prevent harm
from crime is wrongful. Similarly, taking these considerations into account as a part of
the wrongfulness enquiry does not amount to the instrumentalisation of the state
employee.
2.2.1.1.4 Conclusion: the expansion of the state’s delictual liability due to the
negligent and wrongful failure of state employees to prevent crime
Carmichele CC was widely recognised as introducing a favourable development within

the South African law of delict. 162 It also paved the way for the expansion of state
delictual liability for its employees’ negligent and wrongful failure to prevent crime.
This expansion occurred by developing the law relating to the wrongfulness of an

omission, with the courts holding that the existing common-law criterion had to be
informed by constitutional rights, duties and underlying norms. It was the constitutional
imperatives relating to the promotion of safety and security, the norm of state
accountability, and other fundamental rights entrenched in the Bill of Rights that
ultimately proved decisive. Essentially, these considerations persuaded courts to
162 Neethling (2005) TSAR 409; Midgley & Leinius (2002) SALJ 27.
71
impose delictual liability on negligent employees and, because the other requirements
for vicarious liability had also been satisfied, it was uncontentious to take the additional
step and impose vicarious liability on the state.
Various aspects of the series of cases which has had the effect of expanding state
delictual liability have received attention from scholars. As explained above, the nature
of the state’s liability in delict (direct or vicarious) has been questioned. However,
despite academic and limited judicial support, courts have continued to impose
vicarious liability on the state where its employees negligently and wrongfully failed to
prevent crime. 163 Furthermore, in this debate the broader question whether the
continued expansion of state delictual liability provides a satisfactory solution to the
issue of crime victim compensation, has not been considered. That question will be
examined here and also in paragraph 2.2.1.2.5 below.
The point of view supported in this dissertation is that the constitutional development
of this branch of the law is theoretically sound and that the individual outcomes
reached in each of the discussed cases is unproblematic insofar as it has provided
compensation to the individual plaintiffs involved. However, for the reasons set out
below, it is argued that the continued expansion of state delictual liability for harm
arising from crime in this context is undesirable.
In all four of the cases the direct cause of the plaintiff’s harm was the wrongful and
culpable conduct of a criminal: Coetzee was responsible for assaulting Carmichele,
Mohamed assaulted, raped and robbed Van Eeden, Brooks shot Van Duivenboden
and McArdell shot Hamilton. Notwithstanding the possibility of instituting a delictual
claim against the criminal, all of the plaintiffs elected to follow a more indirect route in
pursuit of the reparation of their harm and they argued that the state should be held
delictually liable on the basis that its employees negligently and wrongfully failed to
prevent crime. Considering the likelihood of success of instituting a delictual claim
against each of the respective criminals, the decision to sue the state, in all probability,
must have been made for financial reasons. Compared to the potential impecuniosity
163For example, see PE v Ikwezi Municipality 2016 (5) SA 114 (ECG); Minister of Safety and Security
v Booysen (35/2016) [2016] ZASCA 201; Minister of Defence v Von Benecke 2013 (2) SA 361 (SCA);
Giesecke & Devrient Southern Africa (Pty) Ltd v Minister of Safety and Security 2012 (2) SA 137 (SCA).
72
of the various criminals, the state, with its deep pockets, could offer successful litigants
full compensation for all of the harm they had suffered.
The expanding state delictual liability presents a particularly thorny financial dilemma:
in holding the state vicariously liable for the culpable wrongdoing of an employee and
ordering it to pay the crime victim’s full damages, it is the taxpayer who ultimately bears
the cost. However, if tax-money allocated for the furtherance of safety and security
(e.g. employing more police officials) is used to pay the victim’s compensation or to
settle civil litigation suits, then less funds will obviously be available, in the case of the
police, to prevent crime and promote safety and security. 164 For instance, it is thought
that the increasing civil litigation against the SAPS may lead to the retrenchment of
3000 police officials in the next three years. 165 Increased litigation, which follows the
widening of the state’s liability, may therefore result in a decreased ability to prevent
crime. This, in turn, serves to further increase the likelihood of a higher crime rate and
the accompanying litigation which may be instituted against the state on the basis that
it failed to prevent crime.
This state of affairs is reflected in a report which asserts that between 2007/2008 and
2014/2015, “claims made annually against the SAPS increased by 533% if considering
the original rand value, or 313% if adjusted to the same rand value”. 166 This report,
and its implications, will be discussed in further detail in chapter 4. 167 For present
purposes, it suffices to note that the practical and financial implications of a persistently
expanding state liability, may significantly undermine crime prevention efforts and, if
left unaltered, may eventually completely exhaust the resources allocated for safety
and security, potentially also rendering future crime victims without compensation in
the process.
Finally, it is important to note two recent judgments which further emphasise the
continuing expansion of state delictual liability and which illustrate the potentially
crippling effects that may accompany it. Consider Minister of Justice and Constitutional
164 See P Atiyah The Damages Lottery (1996) 80-81.

165 L Prince “R14,6 mjd. se siviele eise teen polisie in boekjaar” (20 April 2017) available at
<http://www.netwerk24.com/Nuus/Politiek/r146-mjd-se-siviele-eise-teen-polisie-in-boekjaar-
20170420> (accessed on 20 April 2017).
166 31.
167 Paragraph 4.2.3.5.
73
Development v X (“X”), 168 the facts of which closely resembled those in Carmichele
(SCA). Here the court held the Minister of Justice and Constitutional Development as
well as the Minister of Safety and Security vicariously liable on the basis that the
wrongful and negligent failure of their employees to oppose the bail application of one
Steyn caused him to be released on his own recognisance, allowing him the
opportunity to abduct and rape the plaintiff’s minor daughter.
In the cases preceding X, the court clearly took the view that the state employees’
negligent failure to prevent the crime victims’ harm was not prima facie wrongful for
the purposes of delictual liability, 169 which meant that the plaintiff was required to prove
wrongfulness in each case. This was achieved by making and proving factual
allegations from which wrongfulness can be determined. 170 The reports of these cases
also illustrated that, in the process, courts took into account, and weighed against each
other, relevant legal and public policy considerations and constitutional norms to
determine whether delictual liability should be imposed on the state employee (which
would enable it to impose vicarious liability on the employer).
That approach is commendable because it proves that the court is conscious of the
possibility that the continued expansion of state delictual liability may have a chilling
effect on policing resources and the effective combating of crime. 171 In X, however,
although the court mentioned the constitutional rights highlighted in Van Duivenboden,
it failed to pay any attention to the policy considerations that were underlined by the
earlier series of cases, or to mention the constitutional norm of accountability. Instead,
it held “that unless public-policy considerations point in the other direction, an action
for damages would be the norm.” 172
The meaning of the statement that an action for damages has become the norm under
these circumstances is not entirely clear. The statement stops short of suggesting that,
in instances where police officers have negligently failed to prevent crime,
wrongfulness will be presumed. Nevertheless, it could be interpreted as implying a
168 2015 (1) SA 25 (SCA).

169 See also Fourway Haulage SA (Pty) Ltd v SA National Roads Agency Ltd 2009 (2) SA 150 (SCA)
156; Le Roux v Dey (Freedom of Expression Institute and Restorative Justice Centre as Amici Curiae)
2011 (3) SA 274 (CC).
171 See Minister of Safety and Security v Van Duivenboden 2002 (6) SA 431 (SCA) para 19.
172 Para 18.
74
subtle shift towards that development. If the remark by the SCA in X is interpreted in
this way, it indeed signals the court’s readiness to continue the further expansion of
the state’s vicarious liability in delict for harm arising from crime.
In Bridgman NO v Witzenberg Municipality, 173 a young woman aged 18 who suffered

from a mild mental disability, was abducted and raped by three youths on the premises
of Pine Forest Holiday Resort in Ceres. The resort was owned, managed and
controlled by the Witzenberg Municipality. In his capacity as the curator ad litem of the
rape victim, the plaintiff instituted a common-law delictual claim against the
Municipality, arguing that the rape was caused by the negligent and wrongful omission
of the Municipality. The High Court commenced its judgment with the following
statement: 174
“It is the duty of the state, as well as the courts, to address the conditions that enable and continue
to underlie this violence, and to prevent its repetition. This duty arises from the constitutional
obligation upon the state to respect, protect, promote and fulfil the rights in the Bill of Rights; from
the binding nature of the Bill on the legislature, executive, judiciary and all organs of state; and
from the duty upon courts to promote the spirit, purport and objects of the Bill when developing
the common law. The Constitutional Court has held that the Constitution and international law
oblige the state to prevent gender-based discrimination and to protect the dignity, freedom, and
security of women. Such constitutional obligations do not only fall on the South African Police
Service. They must be respected and fulfilled by all organs of state. […] The resort was owned,
managed and controlled by the Witzenberg Municipality. A municipality is an organ of state within
the local sphere of government. As such it is bound to respect, protect, promote and fulfil the
aforementioned rights in the Bill of Rights. The Municipality failed to protect Ms L from being
raped. The wrongfulness of this omission is tested by reference to the legal convictions of the
community, which by necessity are underpinned and informed by the norms and values of our
society embodied in the Constitution. Because of its constitutional duties, and because it owned,
managed and controlled the resort in the circumstances described further below, the failure on
the part of the Municipality to prevent the rape was unlawful.”
Significantly, the court was of the view that, similar to the SAPS, the municipality has
a constitutional duty to prevent crime and that this duty was sufficient to conclude that
the failure to prevent the plaintiff’s harm was wrongful for delictual purposes – without
considering any other policy considerations. This finding is far-reaching and could
potentially expose South African municipalities to expansive delictual liability, with a
multiplicity of similar claims being instituted on a similar basis. If this occurs,
municipalities may have substantially fewer funds available to provide citizens with
basic services relating to housing, electricity, water and sanitation.
173 2017 (3) SA 435 (WCC).

174 Paras 2-4.
75
In addition to the outcome being undesirable from a practical level, the court’s
reasoning may also be questioned on the basis that it would be illogical to expect all
state organs to assume the same responsibilities in relation to crime prevention and
safety and security. In truth, the existence of a variety of state organs bears testament
to the fact that various organs are assigned different tasks. To expect municipalities
to perform the duties of the police is unrealistic and, as suggested, could produce
unwarranted consequences.
Although not based expressly on the reasoning in the Van Duivenboden series of
cases, this judgment illustrates the exceedingly broad contours of state liability which
may follow if the current development of this branch of the law continues. Against this
background, it is perhaps not unsurprising that, in his initial commentary regarding the
judgment in Van Duivenboden, Neethling remarked: 175
“The ever expanding responsibility of the state to protect the right to physical-psychological integrity
in the light of the Constitution and the state's ensuing delictual liability to compensate the victims
of violent crimes, could eventually lead to the creation of a state compensation scheme, similar to
the scheme which the European Convention on the Compensation of Victims of Violent Crime have
in mind for European Union member states, for South Africa.”
It may therefore be considered whether there are other alternatives for providing
compensation to crime victims in this context. Before doing so, the issue of the state’s
expanding delictual liability must first be investigated in full and attention must
therefore be paid to the extension of the state’s liability for harm suffered due to crimes
intentionally committed by its employees.
2.2.1.2 The expansion of the state’s delictual liability for harm suffered due to
intentionally-committed crimes of its employees
2.2.1.2.1 Introduction
In this section the focus turns to the judicial expansion of state delictual liability for the
harm arising from intentionally-committed crimes of state employees. 176 In contrast to
175 Neethling (2003) TSAR 792 (own translation). Neethling writes: “Die steeds uitdyende
verantwoordelikheid van die staat om die reg op die fisies-psigiese integriteit in die lig van die grondwet
te beskerm, en die staat se daaruit voortvloeiende deliktuele aanspreeklikheid om die slagoffers van
geweldsmisdade te vergoed, kan uiteindelik daartoe lei dat ŉ staatsvergoedingskema, soortgelyk aan
die skema wat die European Convention on the Compensation of Victims of Violent Crimes vir Europese
Unie-lidlande in die oog het, ook vir Suid-Afrika in die lewe geroep word.”
176 See K v Minister of Safety and Security 2005 (3) SA 179 (SCA); K v Minister of Safety and Security
2005 (6) SA 419 (CC); Minister of Safety and Security v F 2011 (3) SA 487 (SCA); F v Minister of Safety
and Security 2012 (1) SA 536 (CC).
76
the extension of state liability described and evaluated in paragraph 2.2.1.1 above, the
growth of state liability in this context did not occur through the element of
wrongfulness. Instead, it was enabled by the development of the third requirement for
vicarious liability which holds that the delict must have been committed during the
course and within the scope of employment.
This development, as indicated below, is significant, and means that the state may
now be held vicariously liable in delict for harm arising from an intentional, criminal
abandonment of an employment duty. The CC has thereby departed from the South
African courts’ initial unwillingness to impose vicarious liability in similar
circumstances. 177 This part of the chapter provides the background against which the
development occurred and will then evaluate it.
2.2.1.2.2 The background: South African courts’ initial unwillingness to impose

vicarious liability on employers for the intentionally-committed crimes
of employees
Generally, employers may be held vicariously liable for delicts committed by their
employees during the course and within the scope of their employment, even in the
event that employees perform tasks authorised by employers in an unauthorised
manner. 178 However, it is often problematic to determine whether a delict occurred
within the course and scope of employment in so-called deviation cases. Typically,
these are cases where an employee intentionally engages in conduct that could be
described as a deviation from the tasks for which he was appointed. 179
For a considerable period of time Feldman (Pty) Ltd v Mall 180 (“Feldman”) was the
leading case in establishing the third requirement for vicarious liability in deviation
cases. 181 In determining whether this requirement has been met, the Appellate
Division focused on the nature of the employee’s duties and the degree of deviation
177 Ess Kay Electronics (Pty) Ltd v First National Bank of Southern Africa Ltd 1998 (4) SA 1102 (W);
Absa Bank Ltd v Bond Equipment (Pretoria) (Pty) Ltd 2001 (1) SA 372 (SCA); Minister van Veiligheid
en Sekuriteit v Phoebus Apollo Aviation BK 2002 (5) SA 475 (SCA); Costa da Oura Restaurant (Pty)
Ltd t/a Umdloti Bush Tavern v Reddy 2003 (4) SA 34 (SCA); K v Minister of Safety and Security 2005
(3) SA 179 (SCA).
178 Costa da Oura Restaurant (Pty) Ltd t/a Umdloti Bush Tavern v Reddy 2003 (4) SA 34 (SCA).
179 See Loubser & Midgley (eds) Law of Delict 389-392.
180 1945 AD 733.
181 Wagener Vicarious Liability 107-108.
77
therefrom. The approach adopted in Feldman has been described as the so-called
abandonment of duty-approach, 182 and is explained as follows: 183
“It must be established whether the actions of the employee boils down to ‘a complete
relinquishment or abandonment of his duties in favour of some activity of his own’. For the
purposes of answering this question, it does not matter whether the employee deviated so as
to pursue his exclusively subjective purposes. It is important, however, to determine whether it
may reasonably be stated that the employee, despite deviating for his own interest, completely
distanced him from his obligations.”
After Feldman, the Appellate Division formulated the so-called standard test for
establishing vicarious liability in deviation cases in Minister of Police v Rabie 184
(“Rabie”): 185
“It seems clear that an act done by a servant solely for his own interests and purposes, although
occasioned by his employment, may fall outside the course and scope of his employment, and
that in deciding whether an act by a servant does so fall, some reference is to be made to the
servant’s intention. The test in this regard is subjective. On the other hand, if there is
nevertheless a sufficiently close link between the servant’s acts for his own interests and
purposes and the business of his master, the master may yet be liable. This is an objective
test.”
Applying this test, the court held that a police sergeant, employed by the South African
Police Service as a mechanic, had wrongfully assaulted, arrested and detained the
plaintiff, while also fabricating charges against the latter. The assault and arrest had
taken place when the sergeant had been off-duty, dressed in civilian clothing, in his
private vehicle and in pursuance of his own private interests.
In determining whether the Minister should be held vicariously liable for the harm
arising from the sergeant’s intentionally-committed crime, the court held that, although
the sergeant’s work as a mechanic was limited to a time and place, his work as a
policeman was not so restricted. 186 In the absence of specific instructions to the
contrary, the sergeant could at any time and place perform his functions as a
policeman, and, in certain circumstances, he might have been called upon to do so in
the line of duty. 187 On the facts, he had identified himself as a policeman to the plaintiff
and intended to act as such in effecting the arrest. As such, it seemed reasonable and
fair to infer that the sergeant intended to exercise his authority as a policeman, and
182 Scott Middellike Aanspreeklikheid 159-160; Wagener Vicarious Liability 105-106, 117-118.
183 Scott Middellike Aanspreeklikheid 159-160. Own translation and sources omitted. See also
Watermeyer CJ in Feldman (Pty) Ltd v Mall 1945 AD 733 735-736.
184 1986 (1) SA 117 (A).
185 134.
186 133.
187 133.
78
was therefore acting in the course and within the scope of his employment. 188 This
illustrates that an employer may be liable even in the event that his employee appear
solely to act in his own interests and for his own purposes in a situation occasioned
by his employment. 189
In terms of this approach, it is therefore possible, despite the employee’s subjective

state of mind, to hold an employer vicariously liable for his employee’s delict if the
court is able to establish a sufficiently close connection between the employee’s
conduct and the purposes and business of his employer.
The decision in Rabie is not the only one in which an employer was held vicariously
liable for the harm caused by the intentional, criminal wrongdoing of an employee.
There are other instances in which the courts have reached similar conclusions,
including Hirsch Appliance Specialists v Shield Security Natal (Pty) Ltd, 190 Minister
van Veiligheid en Sekuriteit v Japmoco BK h/a Status Motors191 and Minister van
Veiligheid en Sekuriteit v Phoebus Apollo Aviation BK. 192
Fagan and Wagener argue that these cases were wrongly decided and that, where an
employee abandons his employment duty through intentional and criminal
wrongdoing, the overwhelming likelihood is that there cannot be vicarious liability on
the part of the employer. 193 Their argument may be summarised as follows. South
African courts, both before and after Rabie, have never approached vicarious liability
in deviation cases by applying the standard test developed in Rabie. 194 Specifically,
courts, both before and after Rabie, never approached the question whether an
employee had acted in the course and within the scope of his employment by applying
the Rabie test. 195 Rather, determining whether an employee acted in the course and
within the scope of his employment, or whether his criminal, intentional wrongdoing
removed him outside the scope of his employment has always occurred alongside a
“different, more specific, criterion [namely] whether the employee, in committing the
188 133-134.
190 1992 (3) SA 643 (D).
191 2002 (5) SA 649 (SCA).
192 2002 (5) SA 475 (SCA).
193 See Wagener Vicarious Liability 104-107, 111-115; Fagan SALJ (2009) 158-159.
79
wrongdoing, nevertheless discharged his employment duty”. 196 Fagan argues as

follows: 197
“[The] common law never determined whether an employee’s delict had been committed within
the course and scope of his employment by asking whether he had intended only to promote
his own interests and, if so, whether there nevertheless was a sufficiently close connection
between his delict and his employment. Instead, it always did so by asking whether the
employee’s delict had been committed in the discharge of a duty imposed by his employer and
defining his employment rather than the manner wherein it was to be carried out.”
Wagener has stopped short of suggesting that, because an intentional wrongdoing

always amounts to the abandonment of an employment duty, or, could never amount
to the discharge of an employment duty, there can never be vicarious liability in these
cases. However, he does argue that, where vicarious liability had been imposed in
instances of intentional wrongdoing, “these decisions rest on a flawed understanding
of [the] rules [of vicarious liability]”. 198 Attention may be paid to three SCA judgments
which, in line with Wagener’s argument, reflect the South African courts’ unwillingness
to impose vicarious liability for the intentional wrongdoing by employees.
In Absa Bank Ltd v Bond Equipment (Pretoria) (Pty) Ltd 199 (“Absa Bank”), the
employee in question had paid cheques payable to his employer into a bank account
in the defendant’s bank and which he operated. The employee thereby effectively stole
from his employer. In answering the question whether the employee’s intentional and
criminal wrongdoing took place during the course and within the scope of his
employment, the majority of the SCA referred to the decision in Columbus Joint
Venture v ABSA Bank Ltd, 200 and held that the employee’s unauthorised and criminal
conduct was an abuse of his position that resulted in the defrauding of his employer. 201
This wrongdoing lacked any connection with the duties he was empowered or
authorised to perform. The court reasoned that this was not a case of an improper
execution of employment duties, but rather a case that the employee was not
performing his duties at all. 202 Although it refrained from laying down a general
196 Wagener Vicarious Liability 107. Authority for this argument is apparently drawn from the decision
in Mkize v Martens 1914 AD 382 400, the earliest South African case on vicarious liability, where it was
held that “[t]he whole question is whether the delict was committed […] in the exercise of the functions
entrusted [to the wrongdoer]”.
197 Fagan (2009) SALJ 158.
198 Wagener Vicarious Liability 115.
199 2001 (1) SA 372 (SCA).
200 2000 (2) SA 491 (W) 512.
201 2001 (1) SA 372 (SCA) paras 10-11.
202 Para 9.
80
principle that an employer can never be responsible for the intentional wrongdoing of
an employee which causes the employer harm, the SCA affirmed that an employee
who steals from his employer is the “antithesis of an act carried out in the course and
scope of his employment”. 203
Shortly thereafter, in Ess Kay Electronics (Pty) Ltd v First National Bank of Southern
Africa Ltd 204 (“Ess Kay”), the SCA considered whether the defendant should be held
vicariously liable for the misappropriation of blank bank drafts by its clients. The court
reasoned that an employee’s act that promotes his own interests and purposes, and
done outside the employee’s authority, is not performed within the scope of
employment, even if it was performed during the course of employment. 205 The SCA
argued that it was the employee’s extreme self-interest that meant that his wrongdoing
could not be considered to have been completed during the course and within the
scope of his employment. 206
Later, in Costa da Oura Restaurant (Pty) Ltd t/a Umdloti Bush Tavern v Reddy207
(“Costa”), the court again indicated its unwillingness to hold an employer vicariously
liable for the intentional and criminal abandonment of his employment duty. Here the
plaintiff was assaulted by the defendant’s employee after a confrontation between the
two had occurred inside the premises of the tavern. The assault, however, took place
outside the premises. In determining whether the defendant should be held vicariously
liable for the intentionally-committed crime of its employee, the court reaffirmed the
extract from Watermeyer CJ’s judgment in Feldman 208 and stated that the “critical
consideration is therefore whether the wrongdoer was engaged in the affairs of
business of his employer.” 209 In reaching its conclusion, it was held that the assault on
the plaintiff outside the tavern occurred after he had abandoned his duties. It was a
personal act of aggression done neither in furtherance of his employer’s interests, nor
203 Para 9.
204 2001 (1) SA 1214 (SCA).
205 Para 7.
206 Paras 12-20.
207 2003 (4) SA 34 (SCA).
208 1945 AD 731 743-744: “Another form in which the law is sometimes stated is that a master is liable
for those wrongful acts of a servant which are done while he is on his master's business but not for
those which are done while he is on a frolic of his own. This statement of the principle is misleading.
The question is not whether the servant was on a frolic of his own at the time when the wrongful act
was done but whether the act causing damage was an act done by the servant in his capacity as servant
and not as an independent individual.”
209 2003 (4) SA 34 (SCA) para 5.
81
under his express or implied authority, nor as an incident to, or in consequence of,
anything that the employee was employed to do. 210 Whereas the reasons for, and the
circumstances leading up to, the assault may have arisen from the fact that the
employee was employed by the defendant as a barman, the personal vindictiveness
which led to the assault removed the possibility of the employer’s vicarious liability. 211
Notwithstanding the above, the SCA has applied the standard test formulated in Rabie
in several cases since then. 212 Criticism that there is no such a test is therefore
misplaced and fails to address the problems which its application raises in deviation
cases. Furthermore, these cases illustrate that it is possible to impose vicarious liability
where there has been intentional and criminal wrongdoing. 213 Nevertheless, the
general tendency, as emphasised by the cases discussed above, appears to have
been that an intentionally-committed crime removes an employee outside the course
and scope of his employment. Analysing the reasoning of these cases to determine
their correctness falls outside the scope of this dissertation. Instead, the next section
will pay attention to the more recent judgments of the CC, which indicates a new
willingness to hold the state vicariously liable for crimes committed intentionally by its
employees and which have significantly expanded the state’s delictual liability. These
cases call for further investigation because they require us to consider whether there
are alternatives to expanding the state’s delictual liability to ensure that crime victims
are properly compensated.
2.2.1.2.3 The judicial expansion of the state’s vicarious liability for the harm
caused by the intentionally-committed crimes of police officers
a. The decision of the SCA in K v Minister of Safety and Security
In K v Minister of Safety and Security, 214 three uniformed, on-duty police officers raped
the plaintiff after offering to give her a lift home. The question for consideration was
whether the Minister of Safety and Security, as employer of the three policemen, could
be held vicariously liable for the conduct of these employees. Scott JA, writing for the
210 Paras 5-8.

211 Paras 5-8.
212 For example, K v Minister of Safety and Security 2005 (6) SA 419 (CC) and F v Minister of Safety
and Security 2012 (1) SA 536 (CC).

213 See further paragraph 2.2.1.2.3 below.
214 K v Minister of Safety and Security 2005 (3) SA 179 (SCA).
82
majority of the SCA, interpreted this to be a deviation case, but did not apply the Rabie
standard test for determining vicarious liability. Instead, he adopted the approach set
out in Feldman and focused on the question whether the police officials’ deviating
conduct could be regarded as the execution of the duties for which they were
appointed. 215
Holding that the policemen’s deviation was of such an extreme degree that it could not
be said that they were still exercising the functions for which they were appointed, 216
the SCA refused vicariously liable for the intentionally-committed crimes of the
policemen. Scott JA’s judgment was primarily based on the view that the policemen’s
conduct had been entirely self-serving and unauthorised, and that it could not be said
that the employees were discharging their employment duties. 217 The decision was in
conformity with Absa Bank, Ess Kay and Costa.
Following a previous decision of the CC in another deviation case, Phoebus Apollo

Aviation CC v Minister of Safety and Security 218 (“Phoebus Apollo”), the SCA also
held that the test for vicarious liability is constitutionally consistent and that the
application of the requirements for vicarious liability does not raise a constitutional
issue. 219
It was notable that, in contrast to the subsequent judgment of the CC, the court did not
place any emphasis on the notion that the trust which the victim may be said to have
placed in the police officials could justify a finding of vicarious liability. The court also
rejected the argument that each of the policemen failed to comply with a legal duty to
protect the plaintiff, the breach of which may be used to justify a finding of vicarious
liability. 220 Based on the evidence and the findings in the criminal case against the
wrongdoers, Scott JA held that it was clear that the policemen had conspired to act in
a positive, intentional and reprehensible manner. 221 The argument that each police
215 Para 4.
216 Para 5.
217 Para 5.
218 2003 (2) SA 34 (CC).
219 2005 (3) SA 179 (SCA) para 8.
220 Para 7.
221 Para 7: “The conduct of all three policemen was not only wrongful, it was criminal from the time they
conspired to rape the appellant until the time the attack ended. Indeed, the inference is overwhelming
that the three policemen formed a common intention to rape the appellant [...] Each gave support to the
others in committing the crime. If only one had physically raped the appellant, all three could
83
officer’s conduct simultaneously amounted, on the one hand, to a positive, intentional

act of rape and, on the other hand, a failure to act in accordance with legal duties while
watching the other police officers raping the victim, was therefore rejected as being
artificial and not anchored in practical reality. 222
b. The judgment of O’Regan J in K v Minister of Safety and Security
On appeal in K v Minister of Safety and Security 223 (“K (CC)”), O’Regan J, who wrote
the unanimous judgment of the CC, confirmed that this was a deviation case and
applied the standard test, as developed in Rabie. At the time that the judgment was
handed down, the CC’s jurisdiction was confined to constitutional matters and issues
connected therewith. Therefore, to establish jurisdiction, she was forced to distinguish
the judgment of Kriegler J in Phoebus Apollo, where it was held that the application of
the standard test for vicarious liability “is not a question of law but one of fact, pure
and simple [and, as such] is of course not ordinarily a constitutional issue.” 224 Kriegler
J held that it is not for the CC “to agree or disagree with the manner in which the SCA
applied a constitutionally acceptable common law test to the facts of the present
case.” 225
To circumvent Phoebus Apollo, O’Regan J reasoned that the application of the

requirements for vicarious liability, when applied to a new set of facts, amounted to a
development of the common law. Therefore, in accordance with the CC’s interpretation
of section 39(2) of the Constitution in Carmichele CC, the development of the common
law should be consistent with constitutional rights and norms contained in the
Constitution. 226 The court took the view that applying the standard test without having
regard to the normative influence of the Constitution would sterilise the common
law. 227 Accordingly, it held that the application of the test had to be developed within
a constitutional context and in pursuit of the socio-economic project which gives effect
nonetheless have been convicted of rape. They were at all times acting in pursuance of a common
purpose.”
222 Para 7.
223 2005 (6) SA 419 (CC).
224 Phoebus Apollo Aviation CC v Minister of Safety and Security 2003 (2) SA 34 (CC) para 9.
225 Para 9.
226 K v Minister of Safety and Security 2005 (6) SA 419 (CC) para 22.
227 Para 22.
84
to the spirit, purport and objectives of the Constitution. 228 In the process it emphasised
that Rabie’s standard test did not raise purely factual questions, but mixed questions
of fact and law: 229 “The questions of law it raises relate to what is ‘sufficiently close’ to
give rise to vicarious liability. It is in answering this question that a court should
consider the need to give effect to the spirit, purport and objects of the Bill of Rights.”
The CC held that, although the policemen’s conduct was subjectively in their own
interest, there was, objectively, a sufficiently close connection between their
wrongdoing and their employment so as to hold the Minister vicariously liable in terms
of the Rabie test. 230 The court identified the following factors in reaching its conclusion.
First, the CC emphasised that the constitutional rights to security of the person, dignity,
privacy and equality are of paramount importance. 231 It also reaffirmed the policemen’s
constitutional duty to promote safety and to protect members of the public and
highlighted women’s right to be free from sexual violence. 232
Secondly, the fact that the employees were on-duty, uniformed policemen driving a
marked police vehicle was highlighted. 233 O’Regan J held that it had therefore been
objectively reasonable for the applicant to accept their offer of assistance and to place
her trust in them. 234
Thirdly, although the three policemen had each acted positively in raping the plaintiff,
the court held that each of them individually also failed to perform their constitutional
duties to protect the plaintiff from harm and that such a failure, together with the
aforementioned factors, provided a sufficient basis for establishing the necessary link
between their intentional wrongdoing and their employment as policemen. 235
228 Paras 32, 49-53.

229 Para 32.
230 Para 51.
231 Para 51.
232 Para 52.
233 Para 52.
234 Para 52.
235 Para 53.
85
Lastly, the court referred to the potential role that risk may play as a factor in the
application of the standard test, 236 but it was not used as a factor in reaching the court’s
conclusion.
c. The majority judgment of Nugent JA in Minister of Safety and Security v F
In Minister of Safety and Security v F 237 (“F (SCA)”), the plaintiff instituted a delictual
claim for damages against the Minister of Safety and Security after one of his
employees, a police detective in plain clothes and on standby duty, raped the plaintiff
in the process of giving her a lift home in an unmarked police vehicle. Nugent JA, who
wrote the majority judgment of the SCA, sought to distinguish this case from K (CC) in
the following way.
First, he interpreted O’Regan J’s omissio-commissio argument as identifying two

delicts: the positive, intentional delict of rape and, on the other hand, the wrongful and
negligent failure on the policemen’s part to fulfil their legal duties in preventing the rape
of the victim. According to Nugent JA, the court’s reasoning in K (CC) was based on
the latter delict. 238
Against this background, he held that the SCA would only be bound to the reasoning
in K (CC) if it could be said that the police detective was under a similar legal duty as
the policemen in K (CC) and that he similarly failed to comply with such a duty. 239 In
this regard, Nugent JA stated that a police detective cannot be said to have duties
capable of being breached when he is on standby duty. 240 Therefore, he decided that
there was no possibility of maintaining that the police detective had breached a
constitutional duty in raping the plaintiff, which wrongdoing could form the basis for
drawing the necessary link with his employment. 241
In reaching this conclusion, the SCA therefore noted the decision in K (CC),
distinguished it on significant factual differences and accordingly did not apply the
236 Paras 34-44.

237 Minister of Safety and Security v F 2011 (3) SA 487 (SCA).
238 Paras 30-37.
239 Paras 37-46.
240 Paras 37-46.
241 2011 (3) SA 487 (SCA) paras 37-48.
86
reasoning in that case. In short, the court held that there was no possibility of vicarious
liability.
d. The majority judgment of Mogoeng J in F (CC)
The SCA’s judgment, based on the facts that the police detective was not uniformed,
drove an unmarked police vehicle and was not on duty at the time which the delict
occurred, was not followed by the CC in F (CC). 242 The majority of the CC adopted a
line of reasoning which echoed that of O’Regan J in K (CC). Mogoeng J confirmed
that the standard test developed in Rabie should be used in the event of a deviation
case. In its application of this test the court highlighted the following “normative
components”243 relevant for establishing if a sufficiently close connection existed
between the detective’s employment and his wrongdoing.
First, the court emphasised the constitutional obligations of the state to promote
members of society’s rights to freedom and security of the person and dignity as well
as the police’s duty to prevent, combat and investigate crime and promote safety and
security. 244
Secondly, the court underlined the role played by trust: “the trust that the public is
entitled to repose in the police also has a critical role to play in the determination of
the Minister's vicarious liability in this matter.” 245 Furthermore, Mogoeng J took the
view that, by focusing on trust, the distinction between on-duty and standby duty
became “less significant”. 246 Because he found that there was convincing evidence on
the basis of which to conclude that the victim indeed placed her trust in the detective
as a police official, 247 there was seemingly no further need to analyse the nature of the
detective’s duty. 248
Thirdly, the court rejected the SCA’s interpretation of K (CC), namely that the delict
was based only on the wrongful failure to comply with a legal duty. 249 Although the
242 F v Minister of Safety and Security 2012 (1) SA 536 (CC).

243 Para 52.
244 Paras 53-61.
245 Para 3; 62-68.
246 Para 67.
247 Own emphasis.
248 Paras 62-68.
249 Paras 69-73.
87
court did not explain exactly how the intentional delict of rape assisted in establishing
a sufficiently close connection between wrongdoing and employment, Mogoeng J
nonetheless emphasised that it is an important factor. 250
In conclusion, the majority applied the reasoning in K (CC) and held the state
vicariously liable. In the following section, the widened state delictual liability in the
case of intentionally-committed crimes will be evaluated.
2.2.1.2.4 An evaluation of the widened vicarious liability of the state for the
harm caused by the intentionally-committed crimes of police officers
In this section it will specifically be considered whether the abovementioned

development within the law of delict may be criticised for producing arbitrary outcomes,
and to what extent O’Regan J’s commissio omissio-argument and the applicability of
human rights in drawing a sufficiently close connection between employment and
wrongdoing is tenable. The role of trust will also be investigated. Lastly, it will be
examined whether this development may produce uncertainty for future litigants.
a. Arbitrary outcomes produced by the judgments in K (CC) and F (CC)

i. The strength of the connection between wrongdoing and employment is
made a function of the employer’s identity
In the course of its judgment in K (CC), the court stated that the police officers’ duties
to prevent crime also rested on their employer and, when the employees breached
these duties, the employer seemingly also breached its similar but independent
duty. 251 Such a double breach apparently assisted in justifying the conclusion that a
sufficient connection has been established between the employees’ crimes and the
employer’s business for purposes of establishing vicarious liability. 252
To assess this reasoning, consider the following example. 253 Suppose a cleaner
employed by the Minister of Safety and Security assaults a member of public. Fagan
250 Paras 69-73.

251 Para 51.
252 Para 51. See also Fagan (2009) SALJ 197-198; Wagener (2008) SALJ 674.
253 The example is based on the one provided in Fagan (2009) SALJ 197-198.
88
argues that, based on the CC’s “double-breach-of-duty-ground”, 254 one may conclude
that the Minister has also breached his duty to prevent crime. Furthermore, such a
double breach may now form the basis for connecting the cleaner’s assault with his
employment, rendering the Minister vicariously liable. However, suppose that a
cleaner employed by the Minister of Agriculture assaults a member of public in exactly
the same way, place and time that the cleaner employed by the Minister of Safety and
Security has done. In this example, however, no “double breach” is present. There is
no duty owed by the Minister of Agriculture to protect members of the public and to
prevent crime and, therefore there can be no breach of the employer’s duty capable
of laying the basis for connecting the cleaner’s assault with his employment. This
eliminates the possibility of drawing a sufficiently close connection between the
employee’s wrongdoing and his employment on the basis of the double-breach-of-
duty-ground – despite the fact that the nature of the respective employees’ wrongdoing
was identical.
Fagan’s interpretation and rejection of the double-breach-of-duty-argument is similar

to his criticism of the Van Duivenboden reasoning insofar as it seems to suggest that
it could produce arbitrary outcomes: if the double-breach-of-duty-argument is to be
used as a valid reason in ascertaining whether the employee’s intentionally-committed
crime occurred during the course and within the scope of his employment, then the
assault by the cleaner employed by the Minister of Safety and Security “would be more
closely connected […] to his employment than would an identical assault by a cleaner
employed to do exactly the same job, but [employed] by the Minister of Agriculture
rather than Safety and Security.” 255
To the extent that Fagan’s critique dismisses the importance of the employer’s identity
and duties as indicator of the duties of the employee, it is not persuasive. It is argued,
to the contrary, that whether or not an employer will be held vicariously liable for an
employee’s intentional, criminal wrongdoing may depend to some extent on the
identity of the employer.
It is submitted that the employer’s identity is a factor that can help the court to establish
whether the employee’s wrongdoing falls within the scope of his employment. The
254 199.
255 199.
89
nature, function and duties of an employer are relevant as the matrix within which the
employee’s scope of duties must be evaluated. In other words, to understand whether
or not the employee’s conduct fell within the scope of his employment, regard must be
had to what his employment entails. To do so, it would be necessary to pay attention
to the nature of the employer.
ii. Arbitrary protection of certain legal interests
In K (CC) the court emphasised that it was of “profound constitutional importance” 256
to protect the plaintiff’s constitutional rights, which statement was approved and
confirmed in F (CC). 257 Together with the notion of trust placed in the police, the desire
to protect these constitutional rights laid the basis to conclude that there was a
sufficiently close connection between the policemen’s respective delicts and their
employer’s business. 258 The court referred to the rights relating to security of the
person, dignity and the right to be free from sexual violence – all of which is principally
aimed at protecting bodily integrity.
Wagener has argued that the Bill of Rights is a statement of a priority of a certain set
of interests and that, arguably, within this priority, the right to personal safety and
security ranks higher than the right to property. 259 He argues that, according to the
CC’s reasoning, therefore, it might be that the nature of the relevant human right could
influence the question whether there is a sufficiently close connection between
employment and wrongdoing. However, if the nature of a right, and therefore also the
legal interest protected by the recognition of such a right, is determinative of the
existence of a sufficiently close connection, it would render the application of the
vicarious liability doctrine arbitrary: 260
“The nature of the interest infringed cannot make a delict closer to or further away from the
harmdoer’s employment. What matters to the question is rather the nature of what the harmdoer
was asked to do, in terms of her employment contract, and the nature of her tortious act. On
the reasoning of O’Regan J, however, we come to the counter-intuitive conclusion that the
infringements of different types of interests will be either closer within or further outside the
course and scope of employment; also, that the degree of the infringement of a particular
interest will affect the answer to this question.”
257 Paras 53-61.
258 Para 58.
259 Wagener (2008) SALJ 676; Wagener Vicarious Liability 138-140.
260 Wagener (2008) SALJ 676; Wagener Vicarious Liability 138-140.
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The arbitrary impact of making the standard test for vicarious liability dependent upon
the nature of the legal interest at stake may be illustrated by the following example,
based on one provided by Wagener. 261 Suppose that an employee, tasked with
delivering a package by vehicle, negligently drives the vehicle into an innocent passer-
by so that the latter is seriously injured. Suppose further that the same employee, a
month later, while delivering a package by vehicle, drives negligently again, but this
time manages to miss any innocent passers-by, but collides with a third party’s garden
wall. Upon the reasoning of the court in K (CC), it would seem that the employee’s
conduct in the latter example will be regarded as further outside the course and scope
of his employment merely on the basis of the nature of the legal interest that was
harmed.
The law of delict aims to protect proprietary interests and, significantly, courts have
emphasised that a positive infringement of a right to property, like a positive
infringement of the right to bodily integrity, is prima facie wrongful. 262 One could
therefore arguably expect the application of the vicarious liability doctrine to render
similar and predictable results, regardless of whether a policeman infringes a victim’s
right to her bodily integrity or if he merely steals her wallet or jewellery. However, on
the distinction which the CC draws, theft, although also a crime committed
intentionally, would be considered further outside the scope of employment than
raping someone. This development within the law of delict is undesirable.
b. O’Regan J’s omissio commissio-argument
One of the most important reasons for the court’s finding in K (CC) is O’Regan J’s
interpretation of each of the individual policemen’s actions as simultaneously
constituting both a positive, intentional delict in the form of rape as well as a wrongful
and negligent failure to comply with their legal duties to protect the victim from crime. 263
The CC used the policemen’s apparent failure to comply with their legal duties to
261 The example is based on the one provided in Wagener (2008) SALJ 677.
262 Fourway Haulage SA (Pty) Ltd v SA National Roads Agency Ltd 2009 (2) SA 150 (SCA) para 12;
Mashongwa v Passenger Rail Agency of South Africa 2016 (3) SA 528 (CC) para 19.
263 K v Minister of Safety and Security 2005 (6) SA 419 (CC) paras 49, 53.
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prevent crime to find a sufficiently close link between their employment and
wrongdoing for the purpose of holding their employer vicariously liable.
This reasoning suggests that, if there is a breach of a legal duty, it may point towards
a sufficiently close connection between the fact of employment and an employee’s
delict. 264 However, as the court intimated in K (SCA) and in line with Fagan’s
argument, a possible implication of this reasoning may be that the greater the breach
by the employee of his duty, the closer the relationship between employment and the
delict. 265 For logical reasons, this is an undesirable development of the doctrine of
vicarious liability. In a comparable decision in Lister v Hesley Hall Limited, 266 the then
House of Lords held that the application of this omissio commissio-argument to infer
a sufficiently close connection between the wrongdoing and the fact of employment
amounts to “indulging in sophistry,” adding that this type of approach to vicarious
liability is “both artificial and unrealistic”. 267
This argument may also lead to untenable outcomes from an employer’s perspective.
It could mean that the probability of holding a conscientious employer vicariously liable
would be greater than the probability of vicarious liability being imposed on an
indifferent employer. 268
To illustrate: suppose that A is the type of employer who is focused on ensuring that
his employees perform their duties in the proper manner. 269 He decides to impose
several legal duties to ensure that his employees effectively perform their functions. In
contrast, suppose that B is the type of employer who is unconcerned about the manner
in which his employee’s perform their functions. Accordingly, he decides not to impose
a great number of legal duties on his employees, and provides them a large degree of
discretion to act as they see fit.
All things being equal, because the breach of a legal duty now provides a reason to
conclude that a sufficiently close connection exists between the employee’s delict and
his employment, it is more likely that employer A will be held vicariously liable than
264 Fagan (2009) SALJ 196-198. See also MM Loubser & T Gidron (2011) 57 “State Liability: Israel and
South Africa” Loyola Law Review 727 777.
265 Fagan (2009) SALJ 196-198. See also Loubser & Gidron (2011) Loyola Law Review 777.
266 [2002] 1 AC 215 para 84.
267 Para 84.
268 Fagan (2009) SALJ 196-198.
269 This example is based on the one provided in Fagan (2009) SALJ 196-198.
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employer B. This amounts to an undesirable development of the vicarious liability

doctrine as it could potentially discourage the discharge of employment duties in a
diligent and thorough manner.
Although the majority of the court did not expressly apply this argument in F (CC), it
did not reject it either. Mogoeng J did, however, reject the SCA’s interpretation of the
ratio in K (CC) and held that the policemen indeed committed both a positive,
intentional delict (in the form of rape) as well as failing to prevent the crime. Without
proffering an explanation, he held that such a fact contributes to the conclusion that a
sufficiently close relationship exists between the employee’s wrongdoing and the fact
of his employment.
This line of reasoning may be questioned. What needs to be determined is whether

an intentional deviation from employment duties falls within the course and scope of
employment. The very aspect that typically presents problems in the context of
vicarious liability, namely the fact that there has been a positive, intentional deviation
from employment duties, cannot also serve as a factor in determining whether the
conduct occurred in the course and scope of employment. Mogoeng J does not explain
how the fact that the employee committed a positive, intentional delict may assist the
court to infer a sufficiently close connection in these problematic deviation cases.
Indeed, it is submitted that it should not be a factor in this regard. As argued further
below, this kind of reasoning is theoretically unsound.
c. The applicability of human rights contained in the Bill of Rights
In both K (CC) and F (CC) the court emphasised the significant role that certain human
rights may play in determining whether the state should be held vicariously liable for
the intentional and criminal wrongdoing of its employees. The role which the CC
envisages for fundamental human rights requires further examination.
First, it may be questioned whether the application of the standard test for vicarious
liability in K (CC) and F (CC) constituted a constitutional issue. Prior to the decision in
K (CC), the same court found in Phoebus Apollo that the standard test for vicarious
liability is constitutionally justifiable and, furthermore, that the application of its
requirements did not amount to a constitutional issue.
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In an attempt to circumvent that decision, O’Regan J argued that, whereas rules

pertaining to the doctrine of vicarious liability were not problematic in Phoebus Apollo,
it was placed in issue in K (CC). 270 O’Regan J held that, when applying the objective
component of the Rabie test to new deviation cases, the court had to take sufficient
notice of constitutional imperatives, because the application of the latter with regard to
new factual circumstances amounted to a development of the common law, bringing
section 39(2) of the Bill of Rights into play.
O’Regan J’s argument may be questioned. It practically means that the application of
any common-law rule or principle to a new set of facts will present constitutional issues
and call for the development of the law. This may place a burden on the courts to hear
an inordinate number of cases dealing with the constitutional development of the
common law, which would be prejudicial to the administration of justice. In addition, it
may seriously undermine the legal certainty pertaining to the existence and application
of established common-law rules.
Secondly, it has been argued that the CC has misinterpreted section 39(2) of the
Constitution. According to Fagan, this provision, if properly interpreted, does not
impose a duty on courts to develop the common law whenever that would promote
human rights. 271 Instead, section 39(2) only obliges a court which has decided to
develop the common law for other reasons (e.g. commercial convenience) to ensure
that this independently justified development also promotes human rights, and the
values underlying them. 272 Accordingly, those rights and values are said to play merely
a “secondary role”, i.e. it only helps courts to choose between competing,
independently justified changes to the common law while it cannot play the primary
role of driving the common law’s development. 273
Rightly, this argument has not been accepted by the courts. Courts have clearly
indicated that section 39(2) may be interpreted as providing a justification for
developing the common law to promote fundamental human rights contained in the
270 2005 (6) SA 419 (CC) para 12.

271 Fagan (2008) SALJ 671.
272 671.
273 Fagan (2010) SALJ 611-623.
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Bill of Rights. 274 This dissertation will therefore not focus on determining the role that
section 39(2) plays, or ought to play, in the South African private law, generally.
It is accepted that, generally, fundamental human rights may be taken into account
when developing the common law. The focus here is rather on what role the
constitutional rights and duties play in determining whether the state should be held
vicariously liable for the intentionally-committed crimes of its employees. In
considering this question, the following two points are relevant.
As mentioned above, the CC has insisted that the protection of the public’s human
rights to safety and security of the person, dignity, privacy and equality is of “profound
constitutional importance” in this context. 275 Such a statement may generally be
supported insofar as it seeks to give greater effect to rights pertaining to bodily
integrity. However, the court’s assertion that those rights are important because they
assist not only in determining the nature of the course and scope of employment
enquiry but also because they constitute substantive factors that needed to be
considered in terms of that enquiry, is questionable. 276
An appeal to any of the above constitutional rights cannot assist a court in determining
whether certain conduct occurred within the course and scope of employment. In this
regard, K (CC) and F (CC) must be distinguished from Carmichele, Van Duivenboden,
Van Eeden and Hamilton, where the court had to determine whether the state
employees’ negligent omission was wrongful for the purposes of the law of delict. In K
(CC) and F (CC), however, the policemen’s positive and intentional infringement of the
respective plaintiffs’ right to bodily integrity was prima facie wrongful. 277 It was
therefore unnecessary to have regard to any of the above human rights to prove
wrongfulness in the same way that it had been necessary in Van Duivenboden, Van
Eeden, Hamilton and Carmichele.
274 See also AJ van der Walt Property and the Constitution (2012) 92-97; D Davis “How many positivist
legal philosophers can be made to dance on the head of a pin? A reply to Professor Fagan” (2012) 129
SALJ 59-72.
276 Wagener Vicarious liability 134-135.
277 Fourway Haulage SA (Pty) Ltd v SA National Roads Agency Ltd 2009 (2) SA 150 (SCA) para 12;
Mashongwa v Passenger Rail Agency of South Africa 2016 (3) SA 528 (CC) para 19.
95
For this reason, Loubser has made the point that the “constitutional arguments
advanced by the court in K, such as they are, add nothing meaningful to the principles
of vicarious liability. The references to constitutional rights, duties and values are
vague and general and appear to be a constitutional garnish added to a conclusion
reached on other grounds.” 278
d. Trust in the police as basis for the decision in F (CC)
In both K (CC) and F (CC) the court held that the respective rape victims trusted the
relevant wrongdoers as policemen. In K (CC) this trust was regarded as objectively
reasonable on the basis that the policemen were on duty, uniformed, drove a marked
police vehicle and offered the plaintiff a lift home. These factors assisted the CC in
justifying its conclusion that a sufficiently close connection could be established
between the delicts of the policemen and the fact of their employment. The finding of
trust was inferred from the surrounding evidence. Importantly, the court did not identify
a relationship of trust ex post facto merely on the basis that it transpired that the
wrongdoers were employees of the Minister of Safety and Security. The relationship
of trust was not identified and applied retroactively so as to justify the compensation
of an innocent victim of crime.
In F (CC) the court attached even greater value to the role that trust may play in the
application of the standard test for vicarious liability. However, considering that the
police detective was merely on standby duty, in civilian clothes and not driving a
marked police vehicle, the role assigned to trust in this case may be questioned. From
the evidence it appears that the victim only became aware of the fact that the
wrongdoer may be a member of the police after she had accepted an offer for a lift
home and while driving to the purported destination. This occurred after she had
noticed what appeared to be a police radio and police dockets in the vehicle. During
the course of the ride home, the victim grew suspicious and decided to climb out of
the vehicle. After a while, when the detective returned to the area where the victim had
climbed out, she once again decided to accept a lift and got into the detective’s car for
a second time. Clearly, at this stage there could be no question of any trust. In fact,
278
MM Loubser “Strict Liability” in E Reid & D Visser (eds) Private Law and Human Rights (2013) 205-
232 232-233.
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the victim had chosen to get out of the detective’s vehicle exactly because she
distrusted him. It is suggested that there was no convincing evidence from which the
court could have inferred that the victim trusted the wrongdoer as a policeman.
It therefore appears that, in F (CC), the majority inferred trust in the absence of
convincing evidence and arguably on the basis of knowledge that crystallized only
after the event, namely that the detective was employed by the Minister of Safety and
Security. This factor was then retrospectively applied in order to justify the
compensation of an innocent victim. The conclusion that a person in plain clothes, in
an unmarked, ordinary vehicle and on standby duty could inspire trust that he was a
member of the police and thus clothed with certain legal duties is far-reaching. If the
harm occasioned by a criminal who, in plain clothes and an unmarked vehicle, is
pursuing his self-centred interests in a reprehensible manner, may be shifted towards
the criminal’s employer on the basis of the fact that it later became apparent that the
employer was the state, it may potentially expose the state to near absolute delictual
liability for any intentional and criminal wrongdoing by its employees.
In summary, there was no convincing evidence to suggest that the criminal in F (CC)
was a policeman at the time of committing the crime. Nevertheless, the state was held
delictually liable for the harm suffered by a crime victim and caused by a criminal in
plain clothes, driving an unmarked vehicle and who was not on duty. It may be
considered why the state should then not compensate all crime victims who have
suffered harm at the hands of criminals in plain clothes, driving unmarked vehicles and
acting in their self-interest.
e. The relevance of “standby duty” in determining a sufficiently close

connection
The fact that the three policemen in K (CC) were on duty when they raped the victim
contributed to the CC’s conclusion that the victim’s decision to trust them was
objectively reasonable. One of the major factual differences between K (CC) and F
(CC) is the fact that, in the latter case, the police detective was merely on standby
duty. The trial court found that a police officer on standby duty is effectively on duty
and that the detective accordingly owed the victim a legal duty to prevent harm and to
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promote safety and security. This enabled the trial court, in the light of O’Regan J’s
omissio commissio-argument in K (CC), to conclude that the detective had negligently
and wrongfully failed to comply with his duties, which failure was a factor in
establishing a sufficiently close connection between the fact of his employment and
his wrongdoing.
In F (SCA), the court rejected this conclusion for a variety of reasons. 279 The court
highlighted the absence of any evidence of characteristics of employment while a
detective was on standby duty. 280 The court specifically mentioned the fact that there
was no evidence that the Minister of Safety and Security had exercised any control
over the detective while he was on standby duty. 281 It also emphasised certain policy
considerations which weighed against the trial court’s argument. For example, the
court’s conclusion implied that a police officer can never be off duty since his duties
were apparently of a continuing nature. 282 Most importantly, the SCA pointed out that
the court’s conclusion would effectively make the state the guarantor of good and
virtuous behaviour of police officers at all times, simply because of their
employment. 283
The nature of the policeman’s standby duty is therefore relevant in determining a

sufficiently close connection between wrongdoing and employment. If it is taken to
mean that the detective was off duty, it undermines the possibility that a relationship
of trust could have been established between the victim and the wrongdoer as a
policeman. However, if it may be equated to being on duty, the opposite follows.
Similarly, if it means that the detective was off duty, it further undermines the possibility
to conclude that the employer created the risk for the victim’s harm via his employment.
However, if it is interpreted as on duty, it facilitates the functioning of the risk theory in
this regard. In his majority judgment in F (CC), Mogoeng J held that, based on his
finding that the victim did, in fact, trust the wrongdoer as a policeman, it was not
necessary to come to any conclusion regarding the nature of the detective’s standby
duty.
279 Minister of Safety and Security v F 2011 (3) SA 487 (SCA) paras 40-48.
280 Paras 40-44.
281 Paras 41-48.
282 Para 44.
283 Para 45.
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Nevertheless, towards the end of his judgment, Mogoeng J remarked that the
detective’s “duty to protect the public while on standby was incipient [...] He could be
summoned at any time to exercise his powers as a police official to protect members
of the public.” 284 While it is trite that a police officer can place himself on duty while he
was off duty or on standby duty, thereby assuming certain legal duties, it does not
follow logically that such a person, if he fails to do so, assumes any such legal duties.
Any conclusion to the contrary would undermine the need for a distinction between on
duty, off duty and standby duty and would effectively mean that those in service of the
Minister of Safety and Security are under a constant and inescapable set of legal
duties.
2.2.1.2.5 Conclusion: the expanded delictual liability of the state for the harm
caused by the intentionally-committed crime of its employees
Whereas the state’s delictual liability for harm arising from its employee’s negligent
failure to prevent crime was driven by a development of the law relating to
wrongfulness, the widening of state liability in this context occurred through the court’s
reinterpretation of the requirements for vicarious liability, in particular the requirement
that the employee’s delict must occur in the course and within the scope of
employment. Unlike the development described in paragraph 2.2.1.1 above, which
may be described as theoretically sound but practically and financially problematic,
the development of the law as described in paragraph 2.2.1.2 is problematic from both
a theoretical and practical perspective. These issues are highlighted below.
Vicarious liability of an employer is aptly described as an exception to the fault-based

point of departure of the law of delict. 285 One of the significant implications of imposing
strict liability upon the state as employer is that the latter may be held liable regardless
of the nature of its conduct. In other words, irrespective of whether the Minister of
Safety and Security may be said to have conducted himself reasonably by, for
example, incurring costs in providing appropriate training to each of his employees,
properly instructing them to prevent crime and warning them to avoid causing harm to
284 F v Minister of Safety and Security 2012 (1) SA 536 (CC) 556.
285 Neethling & Potgieter The Law of Delict 389-391; Loubser & Midgley (eds) The Law of Delict 21-24.
99
innocent citizens, he may still be held vicariously liable for the intentionally-committed
crimes of his employees.
As an exception to the ordinary fault-based regime for delictual liability, the imposition
of vicarious liability appears counter-intuitive and seems to stand in contrast with the
notion that personal responsibility underpins the common law of delict. Such an
exception to the rule, however, may be justified on the basis of a variety of policy
considerations. 286
In the first instance, it may be justified on the basis that, by employing certain
individuals, employers expose other members of society to the risk of harm that may
realise in the execution of the employee’s duties. In other words, vicarious liability may
be justified on the basis that, “where an employer creates or materially enhances the
risk of a particular type of wrongdoing being committed, he should be held liable where
one of his employees commits such a wrong.” 287 To this may be added the normative
consideration that the employer receives the benefit of the employee’s work, including
the opportunity to generate a financial profit. 288
It has also been justified on the basis that it is fair, reasonable and just to impose
vicarious liability on an employer since such an imposition would motivate him to take
certain steps to prevent future harm. This means that deterrence may justify the
imposition of vicarious liability. 289 In addition, courts and commentators have remarked
that vicarious liability is justifiable because it is the employer who is in the best possible
position to spread the loss by compensating innocent victims of harm. This may be
done either by means of insurance or through internal measures such as, for example,
price reductions or wage adjustments. 290
Lastly, there are those who justify vicarious liability based on the desire to compensate
innocent victims of harm. 291 This argument basically centres on the notion that it is fair,
reasonable and just to ensure the compensation of an innocent victim of harm. 292 After
286 Scott Middellike Aanspreeklikheid 12.

287 Wagener Vicarious liability 220 and see further at 14-63.
288 Giliker Vicarious Liability in Tort 237-238.
289 Neyers (2005) Alberta Law Review 7-8.
290 Scott Middellike Aanspreeklikheid 28-30.
291 Giliker Vicarious Liability in Tort 234.
292 234.
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all, it is argued, the victim of harm stands removed from the employer-employment
relationship, and does not benefit from it, but may nonetheless be the victim of a delict
committed by a person who may not be able to compensate him. 293
Because vicarious liability is an exception to the ordinary fault-based point of departure

for the law of delict and defendants may be held liable despite conducting themselves
reasonably and lawfully, there is a desire to keep its scope within clearly defined limits.
It is equally important that the doctrine of vicarious liability continues to protect and
balance the respective interests of employer, employee and innocent victim. The need
to ensure the clear demarcation of its scope and to maintain the necessary balance
between the various interests demand the principled application of requirements for
the imposition of vicarious liability. One of these requirements is that the delict must
have been committed by an employee within the course and scope of employment.
In K (CC), the court mentions two policy-based considerations that justify the
imposition of vicarious liability: the compensation of innocent victims of harm and the
prevention of similar future incidents, i.e. deterrence. 294 O’Regan J also warned that
the imposition of absolute liability on employers must be avoided, thereby indicating
the desire to maintain the balance between the various policy considerations as well
as the competing interests of the employer, the employee and the victim of harm. 295
Despite doing so, in both K (CC) and F (CC) the court focused predominantly on the
compensation of the victim of harm. Such a shift in emphasis, especially considering
the particular facts of F (CC), upsets the balance that was previously struck between
the opposing interests of employer, employee and innocent victim within the context
of the vicarious liability doctrine. This is an undesirable development of the doctrine.
In her judgment in K (CC), O’Regan J expressed the reservation that the expansion of
the vicarious liability doctrine should not, without more, lead to holding the state
vicariously liable merely on the basis that a state employee inflicted harm on an
innocent victim in a reprehensible manner. 296 Such a reservation was not followed in
Mogoeng J’s judgment in F (CC). On the contrary, his judgment displays a willingness
293 234.
295 Para 21.
296 Para 23.
101
to expand the application of the doctrine and the state’s delictual liability for harm
arising from crime on the basis that an innocent plaintiff has fallen victim to a serious
crime and requires compensation.
Against this background, it would appear that the true justification, or at least an
important reason, for imposing vicarious liability on the state in K (CC) and F (CC) was
to provide an innocent crime victim with compensation payable by a solvent employer.
Indeed, one may argue that the reasoning of the CC went along these lines: the
“plaintiffs have been wronged; they deserve compensation; the state can afford to pay;
the state in any event has constitutional duties to protect and assist the vulnerable, but
its functionaries acted unreasonably; therefore, it should pay.” 297 If this is in fact the
underlying basis for the judgments in K (CC) and F (CC), it has arguably established
a de facto compensation fund for harm arising from certain crimes on the basis that
the state was somehow involved in the harm suffered by the victim of the crime. 298
Such a judicial development of the vicarious liability doctrine and the expansion of the
state’s delictual liability to provide compensation for harm arising from crime should
be questioned on a variety of grounds. First, as indicated above, it over-emphasises
the interests of the innocent victim at the cost of striking a balance between the
competing interests of the employer, employee and innocent victim.
Furthermore, despite the fact that it achieves the compensation of crime victims, it fails
to provide an adequate reason for electing the employer as the most likely candidate
for compensation: 299 it is not obvious why the victim must look towards the employer,
and not alternative sources of compensation, such as a fund set up for this purpose
or insurance.
Also, it fails to assist in drawing the established distinction between an employee and
an independent contractor: 300 if compensation is indeed the goal that must be
achieved, why is compensation not also demanded from those who appoint harm-
causing independent contractors?
297 Price The Influence of Human Rights 137.

298 136.
299 P Atiyah Vicarious Liability (1967) 22.
300 Neyers (2005) Alberta Law Review 7.
102
Lastly, the judicial development fails to justify the limiting function of the course and
scope requirement for the imposition of vicarious liability. On the contrary, as the
evaluation of particularly F (CC) indicated, it does not contribute towards the
demarcation of the scope of application of vicarious liability.
In addition to the above, the development of the doctrine is problematic insofar as the
reasoning developed by the CC in these cases may expose future litigants to
uncertainty, thereby undermining the constitutional principle of the rule of law. 301 In K
(CC) and F (CC), the court developed the vicarious liability doctrine, and thereby
expanded the state’s delictual liability, by relying on certain factors to satisfy the course
and scope of employment requirement. In both judgments, the CC focused on the
constitutional duties of the state as employer, the relationship of trust between
members of the police and the public and the dual nature of the delict as omission and
commission, while in F (CC) the nature of the primary wrongdoer’s employment at the
time that the crime was committed also received attention.
Although the court in K (CC) did not hold that any of those factors were requirements
for state vicariously liability, Mogoeng J seems to treat them as such in F (CC): 302
“Accordingly, several interrelated factors have an important role to play in addressing the
question whether the Minister is vicariously liable for the delictual conduct of Mr Van Wyk. The
normative components that point to liability must here, as K indicated, be expressly stated.
They are: the State's constitutional obligations to protect the public; the trust that the public is
entitled to place in the police; the significance, if any, of the policeman having been off duty and
on standby duty; the role of the simultaneous act of the policeman's commission of rape and
omission to protect the victim; and the existence or otherwise of an intimate link between the
policeman's conduct and his employment. All these elements complement one another in
determining the State's vicarious liability in this matter.”
To establish a sufficiently close connection and award compensation to the innocent

victim, Mogoeng J narrows his focus to find a relationship of trust. He refers to trust as
the factor that “creates the connection between employment and the wrongful
conduct”. 303 Furthermore, “if his employment as a policeman secured the trust the
vulnerable person placed in him, and if his employment facilitated the abuse of that
trust, the State might be held vicariously liable for the delict.” 304
301 See further the argument presented in paragraph 4.2.3.4 in chapter 4.

302 F v Minister of Safety and Security 2012 (1) SA 536 (CC) para 52.
303 Para 62.
304 Para 66.
103
However, what would be the outcome in a future case where such a relationship of
trust is clearly not present? Would the court be able to reach the same outcome as it
does in K (CC) and F (CC)? It may be argued that, considering its treatment of the
relationship of trust as a near requirement for vicarious liability, courts would be
pressed to deny an otherwise deserving plaintiff a remedy where a relationship of trust
is not present. This may particularly be the case where the primary wrongdoer is not
employed by the Minister of Safety and Security. In other words, the focus of the court
on the identified factors set out above may potentially deny deserving plaintiffs with
meritorious claims compensation if those factors are not present. This may render the
future application of the vicarious liability doctrine arbitrary on the basis that the
judgments have established a type of “tax-funded, de facto insurance scheme for a
small sub-set of victims of crime”, 305 i.e. only those who can successfully prove a
relationship of trust.
Alternatively, courts may continue along this track and try to seek out other factors
present in different circumstances to justify the compensation of innocent victims of
crime where the orthodox application of the vicarious liability requirements would result
in the denial of a remedy. If so, the application of the vicarious liability requirements
will be determined by the implementation of arbitrary factors, identified on a casuistic
basis and driven by the desire to compensate crime victims. This may expose future
litigants to uncertainty.
Therefore, although it may be said that the results produced by these specific
judgments may be acceptable insofar as a victim of a violent crime received
compensation, these results were reached by following an undesirable route, creating
equally undesirable consequences.
As alluded to in paragraph 2.2.1.1.4, an additional problem that may accompany the

expanded delictual liability of the state is a financial one. When the state employer is
held vicariously liable for the culpable wrongdoing of an employee and ordered to pay
the plaintiff’s damages, it is the taxpayer who ultimately has to bear the cost. However,
if taxpayer money is used to pay damages, then less money is available for performing
305 Price The Influence of Human Rights 136.

104
the State’s ordinary tasks, i.e. in the case of the police, preserving law and order and
promoting safety and security. 306
The continued expanding state delictual liability therefore presents the dilemma that,
with less of the available tax monies being used to promote safety and security and to
prevent crime, the likelier further failures to prevent crimes become. In addition, it may
be asked whether it is fair, just or reasonable for courts to award substantial damages
to one or two particular plaintiffs when this may contribute towards a less effective
policing force and, potentially, the causation of harm to other crime victims, who will
then be forced to shoulder the burden of harm themselves if they are not in a financial
position to institute legal proceedings against the state or the primary wrongdoer. 307
To conclude, it should be remembered that everyone has a right to personal safety

and security. The state has a corresponding, all-embracing duty to promote safety and
security and to prevent crime. In the event that the state fails to do so and an
individual’s right to his safety and security is infringed upon, the state should be held
accountable. Under certain circumstances such a norm of accountability may give rise
to a delictual claim to compensate a crime victim’s harm. In K (CC) and F (CC) the
court held that the circumstances warranted an award of damages and thus utilised
tax-funded money to this effect. In doing so, a crime victim received an award of
damages funded by taxpayers and the primary wrongdoer, the criminal, did not have
to pay the victim’s damages. Therefore, as suggested earlier, it may be argued that
these judgments have created a type of de facto insurance scheme for a small sub-
set of crime victims. 308
However, it is conceivable that future crime victims may argue that the harm they
suffered due to crime should be compensated without having recourse to the
application of the rules relating to vicarious liability. This argument flows from the norm
of state accountability, the state’s comprehensive duty to ensure the safety and
security of its citizens, as well as their fundamental right to personal safety and
security. The reasoning of the courts in the recent state delictual liability cases – both
in the Van Duivenboden branch and the judgments in K (CC) and F (CC) – indicate
306 See also Atiyah The Damages Lottery 80-81.

307 81-82.
308 See Price The Influence of Human Rights 136-137.
105
that, where the state, through its employees, has negligently failed to comply with its
constitutional duty to prevent crimes against the victim’s bodily integrity, or where
crimes were intentionally committed, compensation should be awarded to innocent
victims of violent crime. Of course, it is arguable that all crimes which amount to an
infringement of the victim’s bodily integrity ultimately involve the state because it is the
consequence of the state’s failure to comply with its duties in preventing such crimes.
If this argument is further pursued, the state should be regarded not only as the de
facto insurance scheme for the small sub-set of crime victims assisted thus far by the
courts, but as the ultimate insurer for harm arising from crime, at least insofar as the
harm is due to the infringement of the victim’s bodily integrity.
It may be pointed out that, while the recent developments relating to vicarious liability
could have the effect of providing compensation to some victims of crime, the creation
of such a de facto scheme was not the reason for extending liability. However,
notwithstanding the fact that the reason for extending liability might not have been the
establishment of a de facto scheme, it may be possible to describe the development
of this area of the law along these terms and to question its desirability from a practical
and theoretical perspective.
For the reasons above the expanded state delictual liability for intentionally-committed
crimes of its employees may not be a desirable development.
In the following section, a description is provided of a further evidentiary problem that

may confront a crime victim who elects to institute a delictual claim directly against the
state in pursuit of compensation.
2.2.2 Evidentiary problems that may confront a crime victim who institutes a
common-law delictual claim directly against the state for compensation
of harm arising from crime
Cases where a crime victim has elected to institute a delictual claim and argued that
the state itself (as opposed to any specific employee) negligently and wrongfully
caused his harm and should thus be held directly liable in delict may present
106
considerable evidentiary challenges to potential crime victims. These cases will be

discussed and evaluated in this section.
In Shabalala v Metrorail 309 (“Shabalala”), three passengers shot and robbed the
plaintiff while he was aboard one of the defendant’s trains. The plaintiff instituted a
delictual claim against the defendant, arguing that it was negligent in failing to employ
sufficient security measures to ensure the safety of the public generally and, more
specifically, in failing to take adequate steps to avoid the incident in which he was
injured. 310 It was the plaintiff’s case that this negligent omission had wrongfully caused
his injuries.
The plaintiff testified that there were no security officials on the train or on the platform
before the train left the station on the evening in question. There were thus no security
officials that evening to check the authenticity of train tickets and control who boards
the trains. The court accepted the plaintiff’s evidence that none of the people on the
platform waiting to board the train looked suspicious. Further, the plaintiff was unable
to indicate whether the robbers were in the group of people on the station or whether
they were on the train already and he was not capable to indicate what steps the
defendant should have taken to prevent the attack from occurring.
The SCA correctly pointed out that the question for consideration was whether the
defendant’s conduct was negligent. In his judgment, Scott JA therefore correctly
sought to determine whether the defendant’s conduct was reasonable in the
circumstances. 311 In conducting this enquiry, the court focused on two questions. First,
would the reasonable person in the position of the defendant have foreseen the harm
which the plaintiff suffered and, secondly, would the reasonable person in the position
of the defendant have prevented the harm if it was indeed foreseeable? In evaluating
these questions, Scott JA noted that the grounds of negligence that the plaintiff relied
upon were of a “general nature and relate[d] to a systemic failure on the part of [the
defendant].” 312 In other words, this was not a case where a specific employee had
allegedly caused the plaintiff’s harm through his negligence, but, rather, an instance
309 2008 (3) SA 142 (SCA).

310 Para 6.
311 See Sea Harvest Corporation (Pty) Ltd v Duncan Dock Cold Storage (Pty) Ltd 2000 (1) SA 827
(SCA).
312 2008 (3) SA 142 (SCA) para 6 (own emphasis).
107
of direct liability and it was the conduct of the defendant itself – specifically whether
the system it had designed to keep railway passengers safe – that was the focus of
the enquiry.
Having held that the plaintiff’s harm was foreseeable, 313 the SCA had to establish
whether the alleged general failure on the defendant’s part to put measures in place
that would guarantee the safety of commuters was reasonable. To this extent, it was
apparent that the defendant had adopted measures to minimise or prevent crime on
the trains by employing some security guards on trains and on station platforms. The
pertinent question was whether the plaintiff had discharged the burden of establishing
that those measures were unreasonable in the circumstances.
The court concluded that, to prevent the harm in this case, the defendant would have
had to employ at least one security guard on each of its coaches, especially in light of
the assailants’ willingness to use their guns and frequent armed attacks on security
guards. Loubser and Midgley summarise the situation as follows: 314
“Moreover, assuming that the presence of a security guard in the coach would have prevented
the harm from occurring, the question then arises of whether [the defendant] could reasonably
be required to employ a guard on every coach on every train. The court found that such
requirement would be unreasonable because of the large number of coaches involved, and in
terms of the cost and effort. It might have been reasonable to require security guards on every
coach where lines have been identified as being particularly vulnerable to criminal activities, but
no evidence to this effect had been tendered.”
The reasoning of the SCA cannot be faulted. It applied the established common-law
test for negligence on the facts and arrived at the conclusion that, although the harm
befalling the plaintiff was reasonably foreseeable, a reasonable person in the position
of the defendant would not have taken the steps required to prevent such harm
because it would have placed upon it an unreasonable burden to incur an inordinate
amount of costs.
The unreasonable burden and costs of preventing harm in this case stems from the
fact that the defendant operated a nation-wide railway structure, with thousands of
coaches falling under the scope of its responsibility. It would have had severe
economic consequences for the defendant to employ the necessary steps to prevent
313 Para 7.
108
the plaintiff’s harm. As a result, however, an otherwise deserving victim of crime was
left without a remedy to repair the harm he suffered arising from crime.
Subsequently, in Mashongwa v Passenger Rail Agency of South Africa 315

(“Mashongwa”), the plaintiff boarded a train operated by the defendant. Shortly after
its departure, four unarmed men entered the plaintiff’s coach and demanded his
mobile phone, wallet and money. After he handed these to his assailants, they
assaulted him, picked him up and threw him off the train through the open doors of the
coach as the train approached the next station.
Seeking damages in delict, the plaintiff argued that the defendant “did not adopt
reasonable measures for his safety” 316 and that, “as an organ of state, [it] had a duty
to respect, protect, promote and fulfil his constitutional rights by reason of its
responsibilities in terms of the [South African Transport Services Act 9 of 1989].” 317
The High Court found that the defendant had been negligent in failing to ensure that
the train doors were closed when the train initially departed and in failing to deploy at
least one armed guard on each train. The SCA overruled this decision by applying the
reasoning in Shabalala insofar as the defendant’s alleged negligent failure to deploy
security guards in each train was concerned: 318
“Whether there were security guards on the other coaches is unclear. What is clear is that there
were no guards in his coach. It is also clear that to avert the attack there would have had to have
been at least one security guard in his coach. I say at least one because, given the number of
attackers, a single security guard may well have made no difference. But even if one were
sufficient to avert the attack, the question remains whether it would be reasonable to require
Prasa to have a security guard in every coach. To insist on such a requirement would exceed by
far the precautionary measures to be expected of Prasa […] In Shabalala Scott JA accepted that
in order to avert the attack on the appellant, there would have had to be, at least, one security
guard in Mr Shabalala’s coach. But in view of the brazen nature of the attack, where the assailant
had shot Mr Shabalala three times when he said he had no money on him, the learned judge
found that it was doubtful that one guard, even if armed, would have made any difference. Like
Scott JA, I too have my doubts whether the presence of a guard in the particular coach would
have made any difference in this case.”
315 2016 (3) SA 528 (CC). See also Mashongwa v Passenger Rail Agency of South Africa (GNP case
NO 29906/2011); Passenger Rail Agency of South Africa v Mashongwa (2014) ZASCA 202.
316 2016 (3) SA 528 (CC) para 8.
317 Para 8.
318 Passenger Rail Agency of South Africa v Mashongwa (2014) ZASCA 202 para 9 (references and
footnotes omitted).
109
The SCA held that the defendant’s failure to provide adequate security measures to
ensure the plaintiff’s safety was reasonable and, further, that its failure to ensure that
the coach doors were closed while the train was in motion was also not negligent. 319
On appeal, the CC focused its attention on determining whether the defendant’s

alleged negligent failures wrongfully caused the plaintiff’s harm. 320 Mogoeng CJ’s
reasoning may be questioned on other bases, 321 but for present purposes it is
sufficient to note that the court held that the defendant wrongfully caused the plaintiff’s
harm and then considered whether (a) the defendant’s failure to deploy security
guards in the plaintiff’s train and/or (b) its failure to close the train’s doors could be
regarded as negligent.
In response to (a), Mogoeng CJ dealt only with the preventability of harm, and it must
therefore be assumed that the court found that the harm was reasonably foreseeable.
In this context, the CC seemed to follow the SCA’s reasoning in Shabalala as it
emphasised the fact that “Prasa is not required to provide measures that will guarantee
its rail commuters absolute freedom from crimes of violence […] It is only obliged to
provide measures consonant with a proper appreciation of the constitutional and
statutory responsibilities it bears.” 322
The court conducted a thorough evaluation of the preventative security measures that
the defendant undertook in the circumstances, noting that the defendant identified
specific crime hotspots and analysed crime patterns on the basis of which a particular
security and deployment plan for the security guards were outlined and confirmed that
the defendant enlisted the services of 600 security guards in the region in which the
assault had taken place, although none of them were posted on a train. 323 The court
also took into account the fact that the defendant’s senior security officials met with
the police on a regular basis to assess the security situation, 324 and because criminal
incidents were more often reported during the festive season, pre-existing security
319 Para 10.

320 2016 (3) SA 528 (CC) para 19.
321 For instance, the court’s reasoning relating to wrongfulness and factual causation may also be
questioned. However, such an analysis falls outside the ambit of this dissertation.
322 2016 (3) SA 528 (CC) para 34.
323 Para 37.
324 Para 37.
110
measures were reinforced during this period. 325 Lastly, stop, search and seizure
operations were also conducted on trains during the festive season. 326
Against this background, the court correctly weighed the risk of harm (and its
magnitude, if materialising) against the burden and costs associated with taking
preventative steps. 327 In his evaluation, Mogoeng CJ stated that the plaintiff “was
thrown out of a train that operated in a region that had very few incidents of violent
crime.” 328 In fact, “[s]o low was the risk that the highest incidence reported in the entire
region was five per month.” 329 In relation to the financial implications of preventing
harm, the CC noted the defendant’s evidence that, budgetary constraints taken into
account, PRASA’s annual budget for security in the northern region stood at about
R80 million. 330 In response to the possibility of deploying security guards on each
coach or train in the region, 331 the defendant noted that the cost of such an exercise
could easily rise to over R200 million per year for the northern region alone. 332
Ultimately, the CC held that the defendant’s failure to post a security guard on the train
had not been negligent. 333 It should be mentioned that the court found that the
defendant was negligent in respect of (b) above (i.e. in failing to close the doors) and
that this negligent failure was the cause, in fact and law, of the plaintiff’s harm.
Because the court also concluded that the negligent failure to close the door wrongfully
caused the plaintiff’s injury, the defendant was held liable in delict for the victim’s harm.
Therefore, the plaintiff – a victim of violent crime – was successful in claiming
compensation for his harm from the defendant.
325 Para 37.

326 Para 37.
327 See Ngubane v South African Transport Services 1991 (1) SA 756 (A); Cape Metropolitan Council
v Graham 2001 (1) SA 1197 (SCA); Enslin v Nhlapo 2008 (5) SA 146 (SCA); Shabalala v Metrorail
2008 (3) SA 142 (SCA); Loubser & Midgley (eds) The Law of Delict in South Africa 124-129 where the
following factors are identified as relevant in establishing the preventability of harm: the degree or extent
of the risk created by the defendant’s conduct, the gravity of the possible consequences if the risk of
harm materialises, the utility of the defendant’s conduct and the burden of eliminating the risk of harm.
328 2016 (3) SA 528 (CC) para 39.
329 Para 39.
330 Paras 38-39.
331 Paras 38-39.
332 Paras 38-39.
333 Paras 41-43.
111
Nevertheless, Mashongwa, like Shabalala, illustrates that where a crime victim

institutes a delictual claim based on an alleged systemic failure of the state to prevent
foreseeable harm, it may face daunting evidentiary challenges.
First, these judgments illustrate how difficult it is to prove negligence where you are
dealing with so-called systemic failures of the state to prevent crime. When
establishing the preventability of harm under the common-law test for negligence,
courts are required to weigh the risk of harm (as well as its extent, if it materialises)
against the costs and burden associated with harm prevention.
Where the defendant that is sought to be held directly liable is a nation-wide train
operator, with a vast network of trains and railways, the preventative measures
required to prevent harm on a systemic level may conceivably take on astronomical
financial proportions. In other words, as these cases indicate, the costs involved in
preventing harm may simply be too much in these instances. The figures mentioned
in Mashongwa imply that requiring the state-owned railway operator to prevent harm
to train passengers by providing a guard in each coach is, financially speaking,
unsustainable. Further, given the general socio-economic status of train passengers,
it would not be a viable option to subsidise such preventative measures through an
increase in the price of train-tickets.
The result of all of the above is that, unless there is the possibility of pursuing an
alternative route to compensation, the victim will likely be unable to receive
compensation.
Secondly, as illustrated by the level of detail given to specific factual circumstances in

especially Mashongwa, proving the preventability of harm requires a plaintiff to be able
to illustrate the measures that were put in place by the defendant as well as other
steps which a reasonable person would have taken. As will be explained in further
detail in chapter 3, this is a difficult, time-consuming, costly and protracted exercise
which most crime victims arguably will not be able to undertake, thereby potentially
leaving them without a remedy.
The reasoning in Shabalala and Metrorail thus emphasises the prejudicial effect which
the principled application of the common-law approach to negligence may have in
cases where a state entity is sought to be held directly liable for its alleged systemic
112
negligence. Ultimately, this evidentiary burden may prove too much of a stumbling
block for most victims of crime and, without a viable alternative to provide
compensation, they are left to shoulder their own costs.
2.3 The statutory response to providing compensation to crime victims
For a variety of reasons, crime victims may elect not to institute delictual proceedings
against the actual perpetrator of the crime in a civil court. If so, it may be asked whether
there are statutory mechanisms that could assist crime victims in receiving
compensation for harm suffered as a result of crime. In this section, attention will be
given to answering this question by describing and evaluating the provisions contained
in the Criminal Procedure Act, which currently represent the sole statutory possibility
in claiming crime victim compensation. Regard will also be had to the POCA, which
may provide a source of compensation to a select category of crime victims.
2.3.1 The Criminal Procedure Act
The Criminal Procedure Act contains provisions that relate to the compensation of
crime victims. Section 297(1)(a)(i) of the Act authorises a court to postpone the
sentencing of a convicted person for up to five years on certain conditions, including
making payment of compensation, providing community service or reparation in
kind. 334 The section also authorises the suspension of the whole or any part of the
sentence for up to five years, apart from cases where a minimum punishment has
been prescribed. 335
Section 300 of the Act allows a court, when convicting a person of an offence which
has caused damage to, or loss of, property (including money) belonging to another, to
award such a victim of the crime compensation for the damage or loss of his
property. 336 A court will, however, only issue such a compensation order if the crime
victim has specifically applied for it, or if the state prosecutor is instructed by the victim
334 See also Von Bonde Redress for Victims of Crime in South Africa 83.
336 Section 300 of the Criminal Procedure Act.
113
of crime to apply on his behalf, or if the state prosecutor has been expressly instructed
by the state to do so. 337 A superior court is not limited to a specific amount when
making its order, but a regional and a magistrate’s court is limited to an amount
determined by the Minister of Justice by way of notices in the Government Gazette. 338
An order in terms of section 300 has the status of a civil judgment. Imprisonment
cannot be imposed in the event of non-payment. 339
In terms of section 300, the victim has a period of sixty days within which to renounce
the award in writing and to effect repayment of any amount already received. In the
event that the victim decides to accept the court’s order, however, he will not be
entitled to institute civil proceedings against the perpetrator in respect of any other
form of compensation in a civil court. 340 In other words, if he does accept the order, it
“takes the place of any other civil legal remedy that the injured party might have against
the accused.” 341 The reason for this is the so-called once-and-for-all rule, according to
which a plaintiff has only one opportunity to claim damages arising from a single cause
of action. 342
Section 301 of the Act states that, where a person is convicted of theft or any other
offence whereby the person has unlawfully obtained property, and he has sold the
property or a part thereof to another person who had no knowledge that it was stolen
or unlawfully obtained, the court may, on application by the purchaser and
on restitution of the property to the owner thereof, order that, out of any money taken
from the accused on his arrest, a sum not exceeding the amount paid by the purchaser
be returned to him.
337 Joubert et al Criminal Procedure 346.

338 R1 000 000 in respect of a regional court and R300 000 in respect of a magistrate’s court – see
Government Gazette 36111 of 30 January 2013.
340 91.
341 91. See also JM Potgieter, L Steynberg & TB Floyd Visser & Potgieter’s Law of Damages 3 ed (2012)
158.
342 Von Bonde Redress for Victims of Crime in South Africa 91; Visser & Potgieter Law of Damages
158.
114
2.3.2 Critical evaluation of the provisions in the Criminal Procedure Act that
provide a crime victim with assistance to claim compensation
The common law of delict’s deficiencies in compensating crime victims have already
been noted above. It must now be considered whether the Act is effective with regard
to the compensation of these victims.
With regards to the sentences that may be imposed in terms of section 297 of the Act,
it has been remarked that they “are very scarce and the main reason for this is the
lack of means of offenders.” 343
In S v Seedat, 344 the appellant was convicted of raping the 58-year-old complainant,
to whom he had delivered a bedside lamp and groceries. The High Court referred to
sections 297(1)(a)(i)(aa) and 297(4) of the Criminal Procedure Act. The first section
permits a court that convicts a person for an offence, “other than an offence in respect
of which any law prescribes a minimum punishment”, to “postpone” the passing of
sentence for a period not exceeding five years, and release that person concerned on
one or more conditions, including compensation. 345 On the other hand, section 297(4)
allows a court that “convicts a person of an offence in respect of which any law
prescribes a minimum punishment”, to pass sentence in its discretion and to order the
operation of a part thereof to be “suspended” for a period not exceeding five years on
any condition referred to in para (a) of sub-section (1). 346 As a result, the High Court
adopted a proposal made at the trial by the complainant that the appellant pay her
compensation. The court thus suspended the sentencing of the appellant for a period
of three years on condition that he pay her the amount of R100 000 in instalments.
The state appealed against the sentence on the grounds that it was incompetent
and invalid.
On appeal, the SCA held that the postponement of sentence in terms of section 297(1)
of the Act was not available as a sentencing option in the matter as it specifically
343 Von Bonde Redress for Victims of Crime in South Africa 88. See also Scott (1967) 8(2) William &
Mary Law Review 278; B Cameron “Compensation for Victims of Crime, The New Zealand Experiment”
(1963) 12 Journal of Public Law 368; M Fry “Justice for Victims” (1959) 8 Journal of Public Law 191 192;
J Goodey Compensating Victims of Violent Crime in the European Union (2003) 11.
344 2017 (1) SACR 141 (SCA).
345 Para 33.
346 Para 33.
115
prohibited postponement of the sentence where the accused was convicted of an

offence for which the law prescribed a minimum sentence. 347 If, however, it was the
intention of the High Court to invoke the provisions rather of section 297(4) it could
have done so, but it would then have had to impose a sentence for a specific term of
imprisonment and then order that the operation of a part of it be suspended for a
specified period not exceeding five years on any condition, including compensation. 348
The SCA held as follows: 349
“Whilst I accept that the complainant may have thought that it would be appropriate to make the
appellant rather pay monetary compensation for what he did, her views are not the only factor to
be taken into account. Rape has become a scourge in our society and the courts are under a
duty to send a clear message, not only to the accused, but to other potential rapists and to the
community that it will not be tolerated […] Whilst the object of sentencing is not to satisfy public
opinion, it needs to serve the public interest […] Criminal proceedings need to instil public
confidence ‘in the criminal justice system with the public, including those close to the accused,
as well as those distressed by the audacity and horror of crime’ […] Indeed, the public would
justifiably be alarmed if courts tended to impose a suspended sentence coupled with monetary
compensation for rape […] As the state has contended, a sentence entailing a businessman
being ordered to pay his rape victim in lieu of a custodial sentence is bound to cause indignation
with at least a large portion of society.”
The judgment of the SCA in this case illustrates, on the one hand, the limited scope of
application of section 297 of the Act and, on the other hand, sends a clear message
to future rape victims about the unlikely possibility of receiving compensation via the
existing statutory mechanisms.
Although section 300 of the Act provides the crime victim with some form of procedural
assistance in being compensated, it also has serious limitations. 350 In the first
instance, it relates only to “damage to or loss of property (including money) belonging
to some other person” and does not provide a court with the authority to award an
order in respect of non-patrimonial harm or harm that arises from bodily injuries. 351 In
S v Lekgathe, 352 the court noted this shortcoming, remarking that “[t]his seems to be
a casus omissus in the Act which should be rectified.” However, at the time of writing,
it has not been amended. It is recommended that this change be made to provide
more effective compensation to crime victims. However, for the reasons highlighted
347 Paras 35-36.

348 Paras 35-36.
349 Paras 39-40.
350 See also the SALRC A Compensation Fund for Victims of Crime 191, where it is stated that the
current provisions of the Act is “seldom applied in practice and the majority of civil courts are under-
utilized.”
351 See also Von Bonde Redress for Victims of Crime in South Africa 92.
352 1982 (3) SA 104 (B) 112.
116
below, it is doubted whether this will make a practical difference to the issue of crime
victim compensation.
Secondly, as Von Bonde argues, with reference to section 300, the injured party has
to be the owner of the property or money and the scope of the compensation that may
be awarded is therefore significantly limited. 353 The term “injured person” in section
300 is strictly interpreted which means that if stolen goods are sold to an innocent
purchaser and vindicated in his hands, he cannot receive compensation under section
300 for whatever harm he may have suffered as a result of the sale and subsequent
vindication, but will have to rely on the normal delictual action or on an order in terms
of section 301. 354
Thirdly, the application of section 300 is limited to cases where the quantification of
damages is reasonably “straightforward”. 355 In addition, the section is also
“inappropriate in motor vehicle accident cases because a criminal court will not be in
a position to determine the contributory negligence of the injured party. For this the
private law system with its extensive battery of pre-trial pleadings should be utilised to
clarify the issues between the parties.” 356
It must also be emphasised, again, that crimes are very often committed by members
of society who are financially unable to compensate the harm which they cause. 357 As
a result, any orders given by a court against a perpetrator may be practically useless,
thereby exposing the victim of crime to the burden of carrying his loss at his own cost.
More attention will be given to this issue in chapter 4. For present purposes, it may be
added that this could result in a crime victim being placed in a vulnerable position,
354 92.
355 92.
356 92.
357 SALRC A Compensation Fund for Victims of Crime 281-282: “Even where a conviction takes place,
international experience suggests that emphasising compensation from the perpetrator will produce
poor results. In South Africa, it has been shown that the majority of accused persons do not have the
means to compensate their victims. Moreover, it has been argued that it is particularly difficult or
inappropriate for accused people to be expected to pay compensation when they are imprisoned for an
extended period and, consequently, have no earnings […] Even in Europe, where criminal justice
systems are significantly better resourced than in South Africa, payments made by offenders to victims
occur in relatively few cases. This is because offenders, when apprehended, are generally poor and
unable to make payments to the victim.” See also Miers (2014) 20(1) International Review of
Victimology 148-154.
117
whereas the perpetrator’s position is seemingly protected insofar as that he may avoid
the penalty of incarceration.
Lastly, as noted in the SALRC Report, section 300 of the Act “is inadequate in that it
only provides for compensation in cases of damage or monetary loss as a result of
theft or fraud. It is insufficient for compensation in cases of assault.”358
It is therefore concluded that the existing statutory mechanisms provided in the Act for
assisting victims to receive some form of compensation from the wrongdoer is
inadequate. Even if it were to be reformed to broaden its ambit, this would be cold
comfort for the victim who is faced with a wrongdoer who lacks the means to provide
compensation.
2.3.3 The Prevention of Organised Crime Act
The Criminal Procedure Act is not the only legislation that may be relevant within the
context of crime victim compensation. The POCA seeks to introduce measures to
combat organised crime, money laundering and criminal gang activities; prohibit
certain racketeering and money-laundering activities; and criminalise certain gang
activities. The Act also provides for the recovery of the proceeds of unlawful activities
(through confiscation orders) and the civil forfeiture of criminal assets that have been
used to commit an offence (through forfeiture orders). 359
Chapter 7 of the POCA establishes the Criminal Assets Recovery Account (“CARA”)
as a separate account in the National Revenue Fund. 360 The CARA is funded by
moneys derived from the fulfilment of confiscation and forfeiture orders as well as other
sources. 361 In accordance with section 69A(1) of the POCA, Cabinet, after considering

359 A Kruger Organised Crime and Proceeds of Crime Law in South Africa 2 ed (2013) 75-151.
360 Section 63 of the POCA.
361 See section 64 of the POCA: the CARA may also be funded by the balance of all moneys derived
from the execution of foreign confiscation orders as defined in the International Co-Operation in Criminal
Matters Act 75 of 1996; any property or moneys appropriated by Parliament, or paid into, or allocated
to, the account in terms of any other Act; domestic and foreign grants; any property or amount of money
received or acquired from any source; and all property or moneys transferred to the Account in terms
of this Act.
118
the recommendations of the CARA committee, 362 may allocate the property and
money standing to the credit of the CARA to specific law enforcement agencies; any
institution, organisation or fund contemplated in section 68(c) of the Act; or the
administration of the CARA. Section 68(c) of the Act states that one of the objects of
the CARA committee is “to advise Cabinet in connection with the rendering of financial
assistance to any other institution, organisation or fund established with the object to
render assistance in any manner to victims of crime”.
Significantly, the POCA does not state that the funds in the CARA should be used to
compensate crime victims. In fact, the Act does not contain any reference to the
compensation of crime victims. That the purpose of the POCA and the CARA is not
crime victim compensation is demonstrated by various government publications. For
instance, in CARA’s annual report for 2010/2011, the Department of Justice and
Constitutional Development (“DJCD”) notes that the “underlying hypothesis of asset
forfeiture legislation [like the POCA] is that, by confiscating or forfeiting the profits or
proceeds of crime, the incentive for committing specific crimes is reduced.” 363 In
Prophet v National Director of Public Prosecutions, 364 the CC also emphasised this as
the POCA’s main purpose, and explained that the POCA established two mechanisms
“to ensure that property derived from an offence or used in the commission of an
offence is forfeited to the State”, namely confiscation and forfeiture orders. 365
In its discussion of confiscation orders in S v Shaik, 366 the CC again emphasised the
primary purpose underlying the POCA, and emphasised the following objective of the
Act: “[to ensure that] no person convicted of an offence should benefit from the fruits
of that or any related offence [and that] legislation is [therefore] necessary to provide
362 In terms of section 68 of the POCA, the CARA committee is responsible for advising Cabinet in
relation to the forfeiture of property to the State that may occur under chapter 6 of the POCA; financial
assistance offered to law enforcement agencies to combat organised crime, money laundering, criminal
gang activities and terrorist activities.
363 The DJCD Criminal Asset Recovery Account (CARA) Annual Report 2010/2011 (2011) 1. Since
2013, it appears that the information pertaining to the POCA, the CARA and asset forfeiture has been
included in the annual report of the National Director of Public Prosecutions as well as the DJCD’s
annual performance plan. In this regard, the DJCD Annual Performance Plan 2017/2018 (2017) 150
highlights this objective.
364 2007 (6) SA 169 (CC) para 60.
365 See chapters 5 and 6 of the POCA.
366 2008 (5) SA 354 (CC) para 21.
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for a civil remedy for the restraint and seizure, and confiscation of property which forms
the benefits derived from such an offence.” 367 The CC further held: 368
“From this primary purpose, two secondary purposes flow. The first is general deterrence: to
ensure that people are deterred in general from joining the ranks of criminals by the realisation
that they will be prevented from enjoying the proceeds of the crimes they may commit. And the
second is prevention: the scheme seeks to remove from the hands of criminals the financial
wherewithal to commit further crimes.”
Kruger provides the following example to explain the purpose underlying the POCA: 369
“[The POCA] focuses on the events at racketeering, and on assets, in dealing with confiscation
or forfeiture, not on the perpetrator. Say there is a ‘drug house’ in the community, but there is no
evidence to link the owner of the house to the selling of drugs. In such case a forfeiture order in
respect of the house can be obtained (because the house is an instrumentality of an offence)
under Chapter 6 of POCA. The drug house is thus closed down and the crime stopped. Further
drug-dealing in that house is prevented. In this manner POCA acts to prevent crime. The new
paradigm created by Chapter 6 of POCA is one in which the instrumentality or proceeds of crime
are the target, not the person who committed the offence. This approach creates new possibilities
for the prevention and detection of crime.”
Notwithstanding the fact that crime victim compensation is not one of the main
objectives of the POCA, it has nevertheless made an impact in this context. It does in
the following way: 370
“[Once the Asset Forfeiture Unit has claimed] the fruits of the crime on behalf of society; it takes
the profit out of crime. If there is a direct victim of the crime, money from assets forfeited goes to
that victim. If there is no victim the money goes into the [CARA]. The Cabinet then decides what
to do with it. By September 2007, R120 million had been deposited in that account and R73
million paid out to victims of crime.”
According to the DJCD’s annual report for 2015/2016 (“DJCD 2015/2016 Annual
Report”), the following payments have been made to victims of crime since 2008: R53
million (2009/2010), R18 million (2010/2011), R93 million (2011/2012), R28 million
(2012/2013), R84 million (2013/2014), R1 658 million (2014/2015) and R390 million
(2015/2016). 371 As Kruger indicates, payment from forfeited assets goes to the victim
of the specific crime. However, the DJCD 2015/2016 Annual Report does not indicate
the nature of the forfeited assets or to what category of crime victim(s) the payments
were made. Instead, it states that, regarding organised crime “[p]articular focus was
on various areas such as illegal precious metals including copper, rhino-related
367 See also the preamble of the POCA; Kruger Organised Crime 1-11.
368 2008 (5) SA 354 (CC) paras 51-52.
369 Kruger Organised Crime 1.
370 Kruger Organised Crime 10. A detailed description and analysis of the confiscation and forfeiture
procedures under the POCA falls outside the scope of this dissertation. In this regard, see Kruger
Organised Crime 75-151.
371 DJCD Annual Report 2015/2016 (2016) 110.
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offences, drug dealings, illicit mining and tax matters.” 372 Elsewhere it states that the
“cases of higher value were processed. Improved focus [was placed] on high-value
case[s]”. 373
An overview of case law relating to asset forfeiture and confiscation indicates that
these cases are predominantly concerned with drug-dealing, 374 keeping a brothel, 375
corruption and bribery, 376 fraud, 377 and cases where motor vehicles were used as an
instrumentality in the commission of an offence. 378
Against this background, and for the following reasons, it is submitted that the POCA
does not provide an adequate solution to the broad problem of crime victim
compensation.
First, generally speaking, it is clear that asset forfeiture and confiscation cases do not
focus on instances of violent crime or ensuring the compensation of violent crime
victims via the available POCA mechanisms. Arguably, this is because, when
compared to the assets involved in the above “high-value cases”, there are generally-
speaking no significant assets involved in the commission of violent crimes such as
murder, rape or assault. This means that the general financial impecuniosity of violent
criminals and the lack of any significant assets being used as instruments in the
process prevent the POCA mechanisms from being used in this context.
Secondly, although the amounts paid out to victims in a particular financial year may
appear as significant (e.g. R390 million in 2015/2016), it ought to viewed against the
372 100.
373 108.
374 Kruger Organised Crime 134; NDPP v Cole 2005 (2) SACR 553 (W); NDPP v Parker 2006 (1) SACR
284 (SCA); Singh v NDPP 2007 (2) SACR 326 (SCA); NDPP v Van der Merwe 2011 (2) SACR 188
(WCC); Van der Burg v NDPP 2012 (2) SACR 331 (CC).
375 Kruger Organised Crime 134; NDPP v Geyser [2008] ZASCA 15; Mohunram v NDPP 2007 (4) SA
222 (CC); NDPP v Bosch 2009 (2) SACR 547 (KZP); NDPP v Salie 2015 (1) 121 (WCC).
376 Kruger Organised Crime 142; NDPP: In re Appeal 2005 (2) SACR 610 (N); S v Shaik 2008 (2) SACR
165 (CC); NDPP v Gardener 2011 (1) SACR 612 (SCA); NDPP v Ramlutchman 2017 (1) SACR 343
(SCA).
377 Kruger Organised Crime 143; NDPP v Ro Cook Properties (Pty) Ltd; NDPP v 37 Gillespie Street
Durban (Pty) Ltd; NDPP v Seevnarayan 2004 (2) SACR 208 (SCA); Ntsoko v NDPP 2016 (1) SACR
103 (GP).
378 Kruger Organised Crime 137-142. For example: drunken driving cases (e.g. NDPP v Van Staden
2007 (1) SACR 338 (SCA)); cases involving trading abalone (e.g. NDPP v Gouws 2005 (2) SACR 193
(SE); NDPP v Swart 2005 (2) SACR 186 (SE)); cases where drugs was transported (e.g. NDPP v
Seleoane [2003] 3 All SA 102 (NC)); and illegal hunting or poaching cases (NDPP v Mniki [2010]
ZAECPEHC 39 (29 June 2010)).
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number of successful forfeiture cases for that period (e.g. 389 in 2015/2016).
Assuming that victims in each of those cases received money from the proceeds of
unlawful activities, it would arguably still result in a relatively few number of crime
victims receiving a significant amount of money (e.g., on average, and assuming there
was one victim per case instituted in 2015/2016, each victim would have received
approximately R1 million). However, when compared to the substantial number of
violent crime victims in South Africa on an annual basis, 379 the solution offered by the
POCA appears to be unsatisfactory, at least insofar the legal position relating to the
compensation of violent crime victims is concerned.
It may further be noted that, although the POCA’s purpose does not relate to
compensation, once the proceeds from confiscation and forfeiture orders have been
paid into the CARA, it could potentially be used for the purpose of crime victim
compensation if the CARA committee were to advise Cabinet to advance the funds to
a specific institution, organisation or fund which, in turn, uses the funds to compensate
certain crime victims. However, as indicated below, this appears not to have been the
practice up to date.
A 2014 report by the DJCD concerning the CARA records the history and current
status of the property and moneys forfeited and confiscated to the state and deposited
into the CARA (“DJCD 2014 Report”). 380 It is clear that the annual amounts collected
by CARA since its inception in 1999 up to 31 January 2014 has varied considerably. 381
For instance, in the period 1999-2003, approximately R18 million was collected, in
2008-2009 almost R66 million was collected, while the revenue for the 2013-2014
period was substantially higher (almost R95 million) “due to the finalization of three big
cases named Taunenbaum (R53 million), King (R9million) and Rhino Horns
(R4million) and 15 case [sic] of between R500 000 and R3 million) in the current
financial year.” 382 The 2015/2016 annual report by the National Director of Public
379 See paragraph 1.1 in chapter 1 and paragraph 4.2.3.1 in chapter 4.

380 DJCD Report to the Criminal Assets Recovery Committee (CARC) on the Property and Moneys
Forfeited and Confiscated to the State and Proceeds Deposited into the Criminal Assets Recovery
Account (CARA) (2014).
381 4.
382 4.
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Prosecutions further notes that R58 million and R54 million was paid into the CARA in
respect of 2014/2015 and 2015/2016. 383
At the time that the DJCD 2014 Report was published, only two allocations of CARA
funds had been made. In 2006 R73 million was allocated while Cabinet approved an
allocation of R250 million in 2011, bringing the total amount of CARA funds allocated
by Cabinet to approximately R323 million. 384 As at 31 January 2014, there was
approximately R182 million left in the CARA. 385 In its 2016 annual report, the National
Director for Public Prosecutions noted that “[t]he CARA-funds are now depleted”. 386
The DJCD 2014 Report provides further details of how the CARA funds have been
allocated in the past. 387 The DJCD received R150 million for the establishment of an
Anti-Corruption Task Team and R20 million aimed at providing domestic violence and
victim support services; the Department of Social Development was awarded a total
amount of R26 million for funding existing shelters for crime victims and vulnerable
groups as well as funding the Civil Society Organisation; the Department of
Correctional Services was allocated approximately R23 million that was earmarked for
the establishment of 53 modern parole board offices that may provide easy access to
crime victims who “wish to participate in the mediation process with offenders who are
in the correctional facilities”; 388 the SAPS were provided approximately R11 million to
re-establish 45 victim friendly facilities in police stations; and the National Prosecuting
Authority was allocated R20 million to cover “curator expenses in high profile
cases”. 389
Section 4 of the 2014 DJCD Report contains the details relating to the use of the
allocated funds by each beneficiary. 390 None of the beneficiaries refer to crime victim
compensation or contemplate using its allocated funds to be used to compensate
those who suffer harm arising from crime. From this report it may therefore be inferred
that the proceeds collected from forfeiture and confiscation procedures and paid into
383 National Director of Public Prosecutions (“NDPP”) Annual Report 2015/2016 (2016) 51.
384 DJCD Report to the Criminal Assets Recovery Committee (2014) 5.
385 7.
386 NDPP Annual Report 2015/2016 (2016) 54.
387 DJCD Report to the Criminal Assets Recovery Committee (2014) 7.
388 7.
389 7.
390 DJCD Report to the Criminal Assets Recovery Committee (2014) 8-13.
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the CARA have thus far had little, if any, effect on the issue of crime victim
compensation.
Although it may therefore be possible for CARA funds to be allocated to future

beneficiaries with the purpose of crime victim compensation, this has not been the
practice up to date. It is proposed that, if the South African legislature were to establish
a statutory compensation fund for crime victims, a proposal be made by such a fund
to the CARA committee in terms of which it is requested that some of the funds in the
CARA be made available for the purpose of crime victim compensation. 391
Ultimately, the POCA is concerned predominantly with organised crime and provides
certain procedures to accumulate proceeds from unlawful activities within this context.
However, this dissertation does not concern the commission of organised crime or the
potential remedies that may be used in response thereto. This dissertation does not
focus on crime prevention, deterrence or ensuring that criminals do not benefit from
their own wrongdoing. It focuses on the issue of crime victim compensation. It is
submitted that the procedures set in place by the POCA is insufficient and
unsatisfactory in providing sufficient crime victim compensation. 392
2.4 Conclusion
This chapter investigated the way in which crime victims may seek compensation
within the current South African legal system. It is trite that they may institute common-
law delictual claims against the actual perpetrator of the crime and the Criminal
Procedure Act could potentially also provide limited procedural assistance to claim
compensation from the actual criminal. For what is arguably predominantly financial
reasons, crime victims very rarely make use of either of these options. Instead, an
overview of the South African law reports illustrate that they rather seek to hold other
financially capable entities vicariously liable, arguing that, in some way or another,
their harm was wrongfully caused by the culpable conduct of these entities’
391 See further paragraph 4.2.4.1 in chapter 4, where the potential funding of the proposed
compensation fund is discussed in further detail.
392 See paragraph 4.2.4.1 in chapter 4 where it is argued that, if a statutory crime victim compensation
fund were to be enacted, the fund would be well-advised to approach the CARA with a request to make
available funds to the proposed crime victim compensation scheme for the purpose of crime victim
compensation.
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employees. In this context, victims often attempt to hold the state vicariously liable but
a private security services company has also been held liable in this way.
Most of this chapter highlighted particular conceptual problem areas that have arisen
as a result of the expanded state delictual liability. For the various reasons outlined
above, 393 it may be doubted whether the expansion of the state’s delictual liability for
the negligent, wrongful failures of its employees to prevent crime is desirable over the
long term. It may be worthwhile to consider whether there are alternatives for providing
compensation to crime victims. Similarly, the comparable development of state
delictual liability in the context of harm caused by intentionally-committed crimes of
state employees, is regarded as undesirable from a theoretical and practical
perspective. 394
In addition, it was indicated that, if a crime victim suffers harm as result of so-called
systemic negligence, he may have severe difficulty in satisfying the evidentiary burden
of proof in those specific cases. Lastly, considerably less attention was given to
statutory mechanisms that facilitate the compensation of crime victims. This reflects
the lack of specific legislation aimed at compensating crime victims, a topic which will
be discussed in further detail in chapters 4 and 5.
Criticism of the state’s expanded delictual liability is particularly apposite in the case
of South Africa. Considering the fact that police resources are already overextended
by the high levels of crime in South Africa, it seems inappropriate to award substantial
amounts of damages to individual plaintiffs if this will ultimately result in less of the
overall budget awarded to the Minister of Safety and Security being used to promote
general safety and security. 395 In addition, taking into account the fact that it is the
public at large that shoulders the cost of awarding the plaintiff damages while the
individual wrongdoers are rarely made to pay any kind of damages, the development
appears to be problematic.
It may be said that the judgments handed down by the CC which were discussed in
this chapter illustrate the fact that the law of delict appears to be “uninterested in seeing
that the parties really responsible for causing the damage should pay for what they
393 See paragraph 2.2.1.1.4 above.

394 See paragraph 2.2.1.2.5 above.
395 Atiyah The Damages Lottery 81-82.
125
have done, it is only interested in seeing that every effort is made to enable the injured
party to recover from someone, no matter who.” 396 The desire to compensate the crime
victim by seeking out a solvent, potentially blameless entity raises questions which are
not at odds with the view that the law of delict’s primary function is compensation, but
does require one to reconsider who is to take responsibility for compensation. 397
Indeed, the expansion of state delictual liability, especially where the SAPS is
concerned, may be regarded as “a very slippery slope”: 398 does the fact that courts
appear more and more willing to hold the Minister of Safety and Security delictually
liable because its employees negligently fail to comply with their safety and security
duties, not also mean that courts should similarly hold that it would be negligent of a
local municipal authority “not to build a new roundabout here, or to install traffic lights
there, or perhaps to turn a single carriage road into a dual carriage road”? 399 Or, as
the recent judgment in Witzenberg illustrates, for the failure to prevent crime?
Further, as indicated, K (CC) and F (CC) exhibit the CC’s readiness to adopt strained
interpretations of the principles relating to vicarious liability of the state for harm arising
from crime to compensate innocent crime victims. It appears that the courts have
reached a stage where they are willing to compensate the victims of violent crime in
any given circumstance – whether their harm arose from the negligent failure of a state
employee to prevent crime or from the intentionally-committed crime of a state
employee. It may be said that the courts, mindful of the surge in criminal activity and
the vulnerability of most crime victims, and cognisant of their duty to give effect to the
individual’s constitutional right to personal safety and security, as well as the state’s
constitutional obligation to promote safety and security, have created a de facto
compensation scheme for harm arising from crime, which, however, compensates only
a select few. Given the criticism set out in this chapter, this is not a satisfactory state
of affairs.
The reasoning by the CC in these cases signals the court’s preparedness to apply
relevant principles of delict widely in favour of victims of infringement of bodily integrity,
396 83.
397 See further chapter 6.
398 Atiyah The Damages Lottery: Atiyah reacts to the potential expansion of state liability in tort in the
United Kingdom, but the argument is also applicable in the South African context.
399 83-84.
126
regardless of whether or not the harm arose from a negligent failure of a state
employee to prevent crime or from the intentional, criminal wrongdoing of the latter.
As discussed earlier, it is apparent that the court is prepared to search for
circumstantial factors on an ad hoc basis in order to justify the imposition of vicarious
liability on the state where a principled application of the common-law requirements
for vicarious liability would deny the plaintiff a remedy.
These points of criticism provide the impetus for this dissertation. If they are to be
heeded, it necessarily raises the question whether an alternative way exists to award
compensation to crime victims in the position of the respective plaintiffs in K (CC) and
F (CC) as well as other victims of intentionally-committed crimes.
One particular alternative that has been adopted in a variety of foreign jurisdictions is
the establishment of a statutory compensation fund for crime victims. 400 It may
therefore be worth considering whether the detrimental development of the doctrine of
vicarious liability and the expansion of state delictual liability should be pre-empted by
the establishment of a statutory compensation fund for crime victims where, generally,
victims of crimes are allowed compensation for some, or all of, the harm arising from
crime. The creation of such a fund as an alternative for the current trend of widening
delictual liability of the state for harm arising from crime would be a response to the
implications of the recent judicial development, namely that some or other mechanism
needs to be put in place to provide compensation for harm arising especially from
violent crime.
Before any practical issues relating to the potential development of the law of delict
may be considered, there is a preliminary question that requires attention: on what
basis could the potential preferential treatment of crime victims – as opposed to
another category of victims of harm – be justified within the South African law of delict?
The next chapter will seek to assist in answering this question by investigating the
legal and public policy considerations that have justified the legislative intervention in
the law of delict in the past.
400 See also chapter 5.

127
CHAPTER 3: LEGAL AND PUBLIC POLICY CONSIDERATIONS THAT JUSTIFY

LEGISLATIVE DEVELOPMENT OF THE LAW OF DELICT
3.1 Introduction…………………………………………………………………………...130
3.2 Specific legal and public policy considerations which have

justified the statutory reform of the South African law of delict………………….134
3.2.1 The need to combat the risk of harm………………………………………….134
3.2.1.1 Introduction………………………………………………………………..134
3.2.1.2 Motor vehicle accidents………………………………………………….135
3.2.1.3 Occupational injuries and diseases……………………………………..145
3.2.1.4 Defective consumer products……………………………………………153
3.2.1.5 Conclusion: the need to combat the risk of harm………………………161
3.2.2 The role of the Constitution and the need to promote the
constitutional right to social security…………………………………………164
3.2.2.1 Introduction………………………………………………………………..164
3.2.2.2 Salient provisions of the Constitution……………………………………164
3.2.2.3 The constitutional right to social security………………………………..165
3.2.2.4 Legislative intervention that gives effect to the constitutional

right to social security……………………………………………………..167
3.2.2.4.1 Legislative intervention in the area of motor vehicle

128
accidents that gives effect to the constitutional right

to social security…………………………………………………….167
3.2.2.4.2 Legislative intervention in the area of occupational

accidents and injuries that gives effect to the constitutional
right to social security………………………………………………168
3.2.2.5 Conclusion…………………………………………………………………170
3.2.3 Evidentiary problems with applying the common-law requirement

of fault…………………………………………………………………………..171
3.2.3.1 Introduction………………………………………………………………..171
3.2.3.2 Reasons for fault-based liability…………………………………………171
3.2.3.3 Legislative intervention: doing away with the fault requirement………173
3.2.3.3.1 The evidentiary difficulty in proving fault in the context

of motor vehicle accidents…………………………………………173
3.2.3.3.2 The evidentiary difficulty in proving fault in the

context of occupational injuries and diseases……………………174
3.2.3.3.3 The evidentiary difficulty in proving fault in the context

of defective consumer products…………………………………..175
3.2.3.4 Conclusion…………………………………………………………………176
3.3 General legal and public policy considerations which have justified
the statutory reform of the South African law of delict……………………………177
3.3.1 The nature of the civil litigation process: under-compensation

129
and high transaction costs…………………………………………………….177
3.3.2 The ability of the legislature to regulate liability more comprehensively

than the judiciary……………………………………………………………….183
3.3.3 The need to avoid arbitrary outcomes………………………………………184
3.4 Conclusion…………………………………………………………………………....186
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CHAPTER 3: LEGAL AND PUBLIC POLICY CONSIDERATIONS THAT JUSTIFY

LEGISLATIVE DEVELOPMENT OF THE LAW OF DELICT
3.1 Introduction
The previous chapter examined the way in which crime victims may be compensated
within the current South African legal system. They may institute common-law delictual
claims against the actual perpetrator in search of compensation, whereas the Criminal
Procedure Act 51 of 1977 provides limited procedural assistance in recompensing the
harm they suffered.
Chapter 2 identified a number of problems relating to crime victim compensation. For

financial reasons, crime victims are unlikely to institute delictual proceedings against
the perpetrator of the crime. Furthermore, the expansion of the state’s liability for harm
arising appears to be undesirable on theoretical and practical levels. Also, crime
victims interested in instituting delictual claims directly against the state may likely face
significant evidentiary difficulties in proving systemic negligence. Further, the
assistance provided by the Criminal Procedure Act in relation to crime victim
compensation is unsatisfactory. Lastly, although it provides some degree of relief to
victims of organised crime, the Prevention of Organised Crime Act 121 of 1998 does
not focus on crime victim compensation and fails to provide effective assistance to
victims of violent crime.
Chapter 2 highlighted the financial burden imposed on the state as a result of its
expanded liability and the unwarranted implications which this may hold. Against that
background, it was concluded that the current legal position relating to crime victim
compensation is inadequate and it was proposed that an alternative method should
be investigated to provide compensation for crime victims. One particular alternative
that has been adopted in a variety of foreign jurisdictions is the establishment of a
statutory compensation fund for crime victims. 1
However, academics have raised their concern over the lack of a justifiable basis for
this type of legislative intervention: “the idea of selecting this group of injured and
1 See footnote 59 in paragraph 1.5 in chapter 1 for a list of the jurisdictions that have adopted this
alternative.
131
disabled people for special treatment is not easily defensible.”2 Academics have
consequently emphasised a “fundamental problem” 3 that confronts reformers of the
law of delict/tort law in this context, which is that “it is difficult to find a satisfactory
rationale for singling out violent-crime victims from other groups of unfortunates for
special treatment by the state.” 4
The problem with justifying statutory development through the enactment of a crime
victim compensation fund has also been highlighted in South Africa. It will be recalled
that the South African Law Reform Commission (“SALRC”) examined this potential
alternative and published a report on their findings in 2004 (“SALRC Report”), 5 while
a doctoral dissertation 6 has also examined the establishment of compensation fund.
However, as indicated in chapter 1, neither of these research projects dealt with the
issue of justification. 7 Against that background, and with chapter 2 concluding that the
current South African legal position relating to crime victim compensation is
unsatisfactory, this dissertation will aim to provide a theoretical framework that could
guide subsequent deliberation on whether legislative development of the law of delict
relating to crime victim compensation is justified.
Justifying the potential enactment of a statutory crime victim compensation fund is

important for a series of reasons. Obviously, as the SALRC itself pointed out,
“developing a motivation for the establishment of a [statutory compensation fund] in
2 P Cane Atiyah’s Accidents, Compensation and the Law 8 ed (2013) 303-308.

3 South African Law Reform Commission Project 82: Sentencing (A Compensation Fund for Victims of
Crime) (2004) 182-183. See also RE Scott “Compensation for Victims of Violent Crimes: An Analysis”
(1967) 8(2) William & Mary Law Review 277 281; Cane Atiyah’s Accidents 303-308.
4 SALRC A Compensation Fund for Victims of Crime 182-183; Scott (1967) William & Mary Law Review
281; Cane Atiyah’s Accidents 303-308.

5 SALRC A Compensation Fund for Victims of Crime.
6 See JC von Bonde Redress for victims of crime in South Africa: A comparison with selected
Commonwealth jurisdictions Unpublished LLD thesis Nelson Mandela Metropolitan University (2007).
7 The SALRC Report provides a summary of the violent crime situation in South Africa, the impact of
crime on South Africa, outlines the South African legal system’s compensatory regime, provides a
comparative overview of the compensation funds for violent crime victims established in some foreign
jurisdictions, deals briefly with the advantages and disadvantages of establishing a compensation fund
for crime victims in South Africa, examines the role of the criminal justice system in addressing the harm
done to the victim of crime, but it does not set out the legal and public policy considerations that may
justify the legislative development of the law of delict. Similarly, Von Bonde’s thesis focuses on the
rationale underlying the restitution of crime victims, sets out the historical development of the
compensation fund for crime victims in foreign jurisdictions, provide a comparative overview of the
compensation funds that have been established in foreign jurisdictions (including England, India and
New Zealand), examines the role of the criminal justice system (both in South Africa and abroad) in
providing compensation to crime victims, but does not provide a justificatory framework for the statutory
intervention in the law of delict.
132
SA remains incomplete, and must be completed if legislation is to be drafted, since no

law should be passed without its objectives being clearly defined and costed.”8
As pointed out, intervention of this kind, which necessarily requires taxpayer funding,
would require a justifiable policy basis to explain why preferential treatment is being
offered to crime victims as a specific category. Also, one would need a basis of this
kind to inform the purpose, scope and extent of the statute, if it were to be enacted.
A clear policy framework would further assist in guiding interpretation of particular

provisions of the potential act. Indeed, without such a basis, the statute may present
potential crime victims, administrators and courts with an untenable level of
uncertainty. For example, in the absence of a coherent and fixed policy basis, the
statute may create problems of interpretation. And if uncertainty regarding such a
potential statute should lead to litigation, it will fall to a court to identify the statute’s
underlying policy considerations. It may, however, be questioned whether it is
desirable to have judges, who are not privy to the legislative process preceding the
enactment of a statute, make such a broad determination when adjudicating on a
specific matter.
To investigate the justifiability of the proposed fund, the following approach will be
adopted. This chapter will advance a theoretical framework that provides an outline
for justifiable statutory reform of the law of delict insofar as compensation of victims is
generally concerned. This will be done by identifying legal and public policy
considerations which the legislature have used in the past to develop specific areas
within the law of delict. To do so, the background to, and policy bases of, the three
major statutes that have developed the law relating to the compensation of specific
categories of victims in the past will be examined in this chapter. Once this has been
done, chapter 4 will concentrate on the more specific issue, i.e. whether the potential
enactment of a statutory compensation fund for crime victims could fit into such a
framework.
Regarding the approach outlined above, it may be pointed out that there is a difference
between the reasons advanced for the justification of the proposed fund and the scope
of such a scheme. Therefore, the following distinction has been drawn: while this

133
chapter and chapter 4 deal with the issue of justification of the fund, chapter 5 deals
with the specific issues related to its scope (if it were to be enacted). Accordingly, this
chapter and chapter 4 deal mainly with legal and public policy considerations justifying
statutory reform of the law of delict in South Africa, whereas chapter 5 refer to issues
of policy and administrative convenience.
This chapter will draw attention to the historical development of specific South African
statutes which have had a significant impact on the common law of delict. Attention
will specifically be paid to the historical development of the following statutes: the
Compensation for Occupational Injuries and Diseases Act 130 of 1993 (“COIDA”), the
Road Accident Fund Act 56 of 1996 (“RAF Act”), as amended by the Road Accident
Fund Amendment Act 15 of 2005 (“RAFA Act”) and the Consumer Protection Act 68
of 2008 (“CPA”). Although there are several other statutes that have had a significant
influence on the law of delict, 9 the focus will be on these statutes because they
predominantly deal with the compensation of a specific group of victims of harm: motor
vehicle accident victims, victims of defective consumer products and those who suffer
harm as a result of occupational injuries and diseases.
In some way or another, all of these statutes have singled out a collection of individuals
for preferential treatment while aligning themselves with the primary function of the
law of delict, i.e. the compensation of harm. 10 In addition, the COIDA and the RAF Act
have also established statutory compensation funds. Considering that this dissertation
aims to investigate the feasibility of establishing a similar fund aimed at compensating
a different group of victims, it is appropriate to examine the legal and public policy
considerations that have justified the enactment of these similar statutes.
9 For example, the Apportionment of Damages Act 34 of 1956, which was described as being the “most
important piece of law reform that has been carried out in the field of private law since Union”. See RG
McKerron (1956) The Apportionment of Damages Act 1.
the primary function of this branch of the law. The matter of the law of delict’s function will be returned
to in the final chapter 6.
134
The considerations that will be discussed in greater detail include the following. First,
the following specific policy considerations which have justified legislative intervention
within particular areas of the law of delict will be described: the need to combat the
risk of harm, the role of the Constitution and the need to promote the constitutional
right to social security and evidentiary problems relating to the application of the
common-law fault requirement. Thereafter, general considerations which supported
statutory reform of particular areas of the law of delict will be highlighted, including
general dissatisfaction with the high transaction costs and levels of
undercompensation characteristic of the civil procedural system, the preference for
statutory as opposed to judicial reform and the need to avoid arbitrary outcomes.
In conducting this investigation, use will also at times be made of legal comparative
methodology, which has proven to be an instructive tool to understand domestic law
and to evaluate it in the light of the experiences of other jurisdictions.
3.2 Specific legal and public policy considerations that have justified the
statutory reform of the South African law of delict
3.2.1 The need to combat the risk of harm
3.2.1.1 Introduction
Generally, the existence and extent of a risk of harm has played an important role in
the South African legislature’s decision to develop the law of delict. 11 This has
especially been the case in the context of motor vehicle accidents, occupational
injuries and diseases and defective consumer products. In the following part of the
chapter, attention will therefore be paid to the role that risk has played in the enactment
of various statutes that provide compensation for injuries sustained in these contexts.
11 See MM Loubser Inleiding tot MMF-Wetgewing (1993) 3; D van der Nest “Motor vehicle accidents”
in MP Olivier, N Smit & ER Kalula (eds) Social Security: A Legal Analysis (2003) 501-516; MP Olivier
“Social Security: Core Elements” in WA Joubert & JA Faris (eds) LAWSA 13(3) second edition (2007)
paras 158-159; MM Loubser & E Reid Product Liability (2012) 4-5. For a comparative perspective, see
also Cane Atiyah’s Accidents 326-357, 459-487; J Stapleton Product Liability (1994) 6; S Deakin, A
Johnston & B Markesinis Markesinis and Deakin’s Tort Law 7 ed (2013) 51-60, 599-604; B Markesinis
& H Unberath The German Law of Torts 4 ed (2002) 714-717, 724-729.
135
3.2.1.2 Motor vehicle accidents
The introduction of the motor vehicle towards the end of the 19th century had profound
consequences of a technical, social, financial and legal nature. 12 One of the effects
that accompanied its introduction to the marketplace was the increased risk of harm
to especially bodily integrity and property. Arguably, this characteristic of motor
vehicles provided the dominant reason for legislative reform within this context. 13
Writing about the general impact which motor vehicles have had on the law of delict,
Cooper states: 14
“A motor car is a potentially dangerous machine. Its technical improvement, with the attendant
increase in speed, and the increase in the volume of vehicular road traffic, with the inevitable
increase in the number of accidents (which can be described as the materialization of the risk
inherent in the operation of the motor car), have confronted the courts with a variety of delictual
problems requiring judicial determination. In the process the motor car has become the single
most potent instrument for the development and reform of the law of delict in the twentieth
century.”
More specifically, the rise of motor vehicles produced an increase of two types of risk.
First, the rise in motor vehicle traffic has brought about a significant increase in risk to
the bodily integrity and property of drivers, passengers and pedestrians. 15 This is
substantiated by the following data in respect of the use of motor vehicles in South
Africa: 16
12 W Cooper Delictual Liability in Motor Law 2 ed (1996) 1.

13 2-3.
14 2.
15 Loubser Inleiding to MMF-Wetgewing 3; Van der Nest in Social Security 501-516; Olivier “Social
Security” in LAWSA 13(3) paras 158-159.

16 Arrive Alive Motor Vehicle Accident Crash Statistics 1930 – 2000
<https://www.arrivealive.co.za/stats.aspx> (accessed on 10 March 2016). In addition, it may be noted
that in 2013 the International Transport Forum reported that the road accident fatality rate in South
Africa was “among the highest rates worldwide”, while South Africa was ranked worst out of the 36
countries investigated. See International Transport Forum Road Safety Annual Report (2013) 384.
136
Fatalities, injuries and property damage resulting from motor vehicle accidents
Year Amount of South Road Fatal People People Road

vehicles on African traffic road killed in injured in traffic
South population crashes traffic road road crashes
African (in millions) crashes traffic traffic resulting
roads crashes crashes in
property
damage
only
1935 284 216 N/A 31 759 719 897 13 532 21 518
1940 402 757 N/A 36 655 842 910 13 723 25 399
1950 636 292 11.36 51 966 886 952 17 497 38 081
1960 1 236 570 16.26 116 688 2 755 3 051 42 416 85 564
1970 2 121 227 21.50 205 267 7 078 7 948 70 181 155 800
1980 3 494 748 23.80 319 507 6 589 7 572 88 791 256 796
1990 5 200 153 30.60 433 287 9 174 11 157 130 773 344 274
2000 6 814 531 43.33 498 222 6 679 8 494 159 704 401 403
2010 9 892 400 50.90 N/A 17 10 837 13 967 N/A N/A
Generally, when the risk of injury to the person or property materialises as the result
of the culpable conduct of another, the victim may institute a delictual claim against
17OA Osidele An Analysis of Patterns and Trends of Road Traffic Injuries and Fatalities in Vhembe
District, Limpopo Province, South Africa Unpublished LLM dissertation University of Venda (2016) at
page ii estimates that there were more than 500 000 accidents in 2010.
137
the wrongdoer in search of compensation of his harm. 18 Wrongdoers, however, are

often unable to pay any or all of the damages required to repair the victim’s harm. 19 In
Law Society of South Africa v Minister for Transport, 20 Moseneke DCJ remarked that,
“[in his] view, the number of drivers and owners who would be able to pay would be
very small.” 21 In turn, this inability may expose a wrongdoer’s victim to the further risk
of receiving limited or no compensation in respect of the harm they suffered. 22 Nugent
JA referred to the impact that risk has in this context as follows: 23
“People need cars, cars knock people over, people are injured, we cannot bear the cost of
knocking people over. It is inherently risky for those who knock people over and for those who
are knocked over. The two problems are: People who are driving cannot afford the risk of
knocking people over and the people who are using the roads cannot afford the risk of being
knocked over.”
To protect road users from the potential realisation of such risks and to ensure the
compensation of motor vehicle accident victims, the South African legislature decided
to intervene in the law of delict by enacting motor vehicle accident legislation. The
remainder of this paragraph contains a brief historical background of the development
of this legislation, which sheds light on the considerations that could justify a
legislature’s potential future reform of the law of delict.
To a certain extent, the South African legislation that was introduced in this context
was based on similar statutes enacted by the English legislature during the course of
the 1930’s. 24 It might therefore be worthwhile to reflect on the policy reasons that
influenced the English legislature in this regard.
During the first part of the 19th century, under traditional “’horse and buggy law’ […]
the driver or rider was only liable in so far as he was at fault.”25 Following the judgment
18 Law Society of South Africa v Minister for Transport and Another 2011 (1) SA 400 (CC) para 50.
Recent amendments to the RAF Act have, however, abolished the motor vehicle accident victim’s
common-law claim against wrongdoers. See further paragraph 5.5.1.1 in chapter 5.
19 Workmen’s Compensation Commissioner v Norwich Union Fire Insurance Society Ltd 1953 (2) SA
546 (AD) 551; Loubser Inleiding to MMF-Wetgewing 3; Van der Nest in Social Security 502; Olivier
“Social Security” in LAWSA 13(3) para 158-159.
20 2011 (1) SA 400 (CC).
21 Para 50.
22 Loubser Inleiding to MMF-Wetgewing (1993) 3; Van der Nest Social Security: A Legal Analysis (2003)
502; Olivier “Social Security” in LAWSA 13(3) paras 158-159.

23 Road Accident Fund Commission (“RAFC”) Report of the Road Accident Fund Commission (2002)
103.
24 Op’t Hof v SA Fire & Accident Insurance Co Ltd 1949 (4) SA 741 (W) 743.
25 JR Spencer “Rylands & Fletcher: a Chapter of Accidents in the History of Law and Motoring” (1983)
42(1) Cambridge Law Journal 65 65-66.

138
in Rylands v Fletcher, 26 however, the theory of strict liability emerged, as a result of

which it was held that damages could be payable when injury was inflicted in the
course of conducting a business for profit, even if there was no question of fault. 27 It
was argued that, if a car damaged people or property, the person who brought the car
onto the highway should be held strictly liable. 28 This development, however, came to
a halt in Wing v London General Omnibus Company, 29 when the Court of Appeal
dismissed the notion that motor cars were, generally speaking, inherently dangerous
things. The effect of this judgment was that the law of torts relating to motor vehicle
accidents in the early 20th century was made to rest “squarely upon the basis of fault
liability upon which it has rested ever since.”30
Although the number of motor vehicle accidents in the United Kingdom (“UK”) was
initially small and ownership of vehicles was restricted to a limited, wealthy class, they
gradually became cheaper, which meant that ownership became more widespread. 31
The significant rise in motor vehicles in the UK resulted in a substantial surge in the
number of motor vehicle accidents. 32 The fact that the appeal for reform of the branch
of law dealing with the compensation of harm caused by motor vehicle accidents
reached a highpoint during this period is therefore unsurprising. 33 Bartrip describes
the increased use of motor vehicles and its accompanying risk of harm as follows: 34
“Whatever the perceived or alleged benefits of motorised transport, it cannot be doubted that
motor vehicles took a tremendous toll of human life and limb in twentieth-century Britain. Official
records for the years 1930 to 1939 (inclusive) indicate that 69824 people died on Britain’s roads,
at an average rate of just over 7000 per year. Between 1920, when records began, and 1930 the
annual number of road deaths rose at a staggering rate from 4886 to 7305.”
To address the issue of motor vehicle accidents and related matters, a Royal
Commission was appointed in 1928. On the basis of its recommendations, a bill was
proposed and ultimately passed by the English legislature as the Road Traffic Act of
1930. Significantly, the Act introduced a system of third party compulsory insurance,
26 [1868] UKHL 1.
27 P Bartrip “No-Fault Compensation on the Roads in Twentieth Century Britain” (2010) 69(2)
Cambridge Law Journal 263 266.
28 Spencer (1983) Cambridge Law Journal 65-66.
29 [1909] 2 KB 652 666-667.
30 Spencer (1983) Cambridge Law Journal 66-73.
31 R Merkin & S Dzibion “Tort Law and Compulsory Insurance” in TT Arvind & J Steele (eds) Tort Law
and the Legislature: Common Law, Statute and the Dynamics of Legal Change (2013) 303-329 307.
32 Merkin & Dzibion “Tort Law and Compulsory Insurance” in Tort Law and the Legislature 307.
33 Bartrip (2010) Cambridge Law Journal 263.
34 P Bartrip “Pedestrians, Motorists, and No-Fault Compensation for Road Accidents in 1930s Britain”
(2010) Journal of Legal History 45 45-46.

139
making it unlawful to use a motor vehicle unless an insurance policy in respect of “third
party risks” was in force. 35 This system of compulsory third party insurance has been
maintained under the Road Traffic Act of 1988. 36
Similar to England, South Africa experienced a dramatic increase in the use of motor
vehicles during the course of the 1930’s which brought with it an increase in motor
vehicle accidents. 37 Analogous to the situation in England, this led to considerable
pressure being exercised on the South African legislature to alleviate the plight of road
accident victims. 38 The need was expressed to protect motor vehicle accident victims
against the possibility of limited or no recovery of harm because the wrongdoer “was
a ‘man of straw’ and unable to pay the road accident victim’s loss or damage.” 39
Accordingly, the South African legislature followed the lead of the English legislature
in 1939 when it decided to introduce the first bill aimed at protecting motor vehicle
accident victims. During a debate of the bill, the Minister of Finance referred to the
legal and public policy considerations underlying justifiable legislative reform of the
law of delict within this context: 40
“I am of the view that this Bill may be described as one which is designed to meet a long-felt
want. Its object is to ensure the payment of compensation for injuries or death caused by
negligence in the use of motor transport. I think honorable members are aware that there are a
considerable number of motor vehicles in the Union driven by people who are not insured against
what are known as third party risks. I think I shall probably be correct in saying that that is the
case with the majority of the motor vehicles in the Union, and that, of course, means that when
harm is brought about through the negligence of an uninsured motorist and he is unable to meet
a claim for compensation, the innocent victim is left without any redress.”
The Motor Vehicle Insurance Act 29 of 1942 ultimately came into effect in 1946. Its
aim, as stated in its preamble, was to “provide for compensation for certain loss or
damage caused unlawfully by means of motor vehicles and for matters incidental
thereto.” The Act introduced compulsory third party insurance on a national scale and
compelled the owners of motor vehicles, generally, to take out insurance so that motor
35 F Deak “Compulsory Liability Insurance under the British Road Traffic Acts Of 1930 And 1934” (1936)
Law and Contemporary Problems 565 566.

36 See section 143 of the Road Traffic Act of 1988.
37 See the table in paragraph 3.2.1.2 above. See also the second reading of the draft Motor Vehicle
Insurance Act 29 of 1942 in Parliament, where the Minister of Finance refers to this consideration as
legal and public policy consideration justifying the Act: Debatte van die Volksraad Deel 43 (1942) 1255-
1259.
38 RAFC Report of the Road Accident Fund Commission 108-112.
39 108.
40 Debatte van die Volksraad Deel 43 (1942) 1255-1259 (own translation).
140
vehicle accident victims may be properly compensated for the harm which they
suffered arising from the negligent and unlawful driving of a motor vehicle. 41
In Rose’s Car Hire (Pty) Ltd v Grant, 42 the Appellate Division confirmed that the
intention behind the legislature’s decision was to ensure, through the compulsory
insurance of motor vehicles, that injured persons or their dependants who might not
be able to recover damages owing to the inability of the parties liable to pay, should
receive full compensation from insurers in as many cases as possible. Shortly
thereafter, in Aetna Insurance Co v Minister of Justice, the same court reaffirmed the
purpose of the legislative intervention as follows: 43
“The obvious evil that [the Act] is designed to remedy is that members of the public who are
injured, and the dependants of those who are killed, through the negligent driving of motor
vehicles may find themselves without redress against the wrongdoer. If the driver of the motor
vehicle or his master is without means and is uninsured, the person who has been injured or his
dependants, if he has been killed, are in fact remediless and are compelled to bear the loss
themselves. To remedy that evil, the Act provides a system of compulsory insurance.”
The 1942 Act underwent regular amendments and was replaced by the Compulsory
Motor Vehicle Insurance Act 56 of 1972, which came into operation in 1972. The
motivation behind the enactment of new legislation was not to pursue a purpose
different to that outlined above, but rather to amend the mechanics by means of which
the aim was sought to be achieved. 44 As is evident from a series of cases dealing with
liability under the 1972 Act, 45 the legislature’s primary focus was still the protection of
those who suffer harm 46 as a result of motor vehicle accidents and who might be
unable to recover damages owing to the wrongdoer’s inability to pay compensation. 47
41 HB Klopper Law of Third Party Compensation (2000) 3; Cooper Motor Law 3. See also RAFC Report
of the Road Accident Fund Commission 110: the insurance would cover harm as a result of bodily
injuries or death of a breadwinner arising from the culpable and unlawful driving of a motor vehicle, but
did not cover property damage or other harm which may have been suffered as a result of the accident.
42 1948 (2) SA 466 (A) 471.
43 1960 (3) SA 273 (A) 285.
44 The Act required the insurance of the vehicle and not insurance of the owner or driver. It also provided
cover (through the newly established Motor Vehicle Assurance Fund), for the first time, for loss
occasioned by uninsured or unidentified motor vehicles. See further Law Society of South Africa v
Minister for Transport 2011 (1) SA 400 (CC) para 20.
45 See Commercial Union Assurance Company of South Africa Ltd v Clarke 1972 (3) SA 508 (AD) 518;
AA Mutual Insurance Association Ltd v Biddulph 1976 (1) SA 725 (AD) 738; Webster v Santam
Insurance Co Ltd 1977 (2) SA 874 (AD) 881; Nkisimane v Santam Insurance Co Ltd 1978 (2) SA 430
(AD) 435.
46 As was the case with its predecessor, the insurance policies taken out as a result of the Act would
cover only harm arising from bodily injuries or the death or bodily injuries of a breadwinner.
47 The preamble of the Act reads as follows: “To provide for the compulsory insurance of certain motor
vehicles in order to ensure the payment of compensation for certain loss or damage unlawfully caused
by the driving of such motor vehicles; for the payment of compensation where the loss or damage is
caused by the driving of an uninsured or unidentified motor vehicle; and for incidental matters.” See
141
Similar to its predecessor, the Act was based on the common-law principles of
delictual liability, which required an accident victim to prove that his harm had been
caused by the culpable and unlawful driving of a motor vehicle.
The 1972 Act was substituted by the Motor Vehicle Accident Act 84 of 1986 (“MVA
Act”). The MVA Act, which came into operation in 1986, introduced a number of
changes. 48 Importantly, it replaced the former system of compulsory third party
insurance with a system of statutory assumption of liability in respect of harm suffered
by road users as a result of the negligent and unlawful driving of a motor vehicle. 49 To
achieve this, the legislature established the Motor Vehicle Accident Fund (“MVA
Fund”), financed by fuel levies, to fund the new statutory system of compensation of
harm. Because the MVA Act was effective only in South Africa and Namibia but not in
the former so-called independent territories of Transkei, Bophuthatswana, Venda and
Ciskei, the Multilateral Motor Vehicle Accidents Fund Act 93 of 1989 (“MMF Act”) was
enacted in 1986 with the view to bringing about a uniform system of third party
compensation. 50 The MMF Act remained applicable up to 1997, when the newly
enacted RAF Act came into operation.
The RAF Act essentially has the same object as that of its predecessors, namely the
“payment of compensation for loss or damage wrongfully caused by the driving of
motor vehicles.” 51 It was based on the common-law elements for delictual liability and
has retained fault as the basis for liability. Although it has been argued that the effect
of the Act was to “suspend the common law delictual action against the wrongdoer
and to compel the road accident victim to institute his claim against the Road Accident
Fund”, 52 the delictual claim of the victim was left intact and victims therefore had the
option of instituting a claim against the wrongdoer in respect of harm that was not
covered under the RAF Act.
also A Suzman, G Gordes & MW Hodes The Law of Compulsory Motor Vehicle Insurance in South
Africa 3 ed (1982) 4-6.
48 Law Society of South Africa v Minister for Transport 2011 (1) SA 400 (CC) para 21; Klopper Law of
Third Party Compensation 4.

49 Klopper Law of Third Party Compensation 4.
50 4.
51 Section 3 of the RAF Act. See also RAFC Report of the Road Accident Fund Commission 111-112:
Not all damage caused by the unlawful and negligent driving of a motor vehicle can be recovered from
the RAF. See paragraph 5.7 in chapter 5 for a discussion of the limitation and exclusion of liability under
the RAF Act.
52 RAFC Report of the Road Accident Fund Commission 111.
142
In its 2002 report, the Road Accident Fund Commission (“RAFC”) described the fault-
based compensation system established under the RAF Act as “unreasonable,
inequitable, unaffordable and unsustainable.” 53 Among other things, the RAFC found
that the Act’s insistence on fault-based liability contributed to its financial decline. The
criticism of the RAF Act’s fault-based liability regime is discussed in further detail in
paragraph 3.2.3.3.1 below.
The victim’s common-law right to claim compensation from a wrongdoer for harm that
is not compensable under the RAF Act was abolished by section 9 of the RAFA Act,
which came into force on 1 August 2008. In Law Society of South Africa v Minister for
Transport, 54 the Constitutional Court (“CC”) was requested to consider the
constitutional validity of this amendment. 55 As will be discussed in greater detail in
chapter 5, the CC held that it passed the necessary rationality test and confirmed that
the abolition of the common-law claim against the wrongdoer was justifiable. 56
In its judgment, the CC referred also to the dominant consideration that triggered the
amendment – the need to compensate victims of harm that manifests when the risk
created by motor vehicles materialises – as well as future reform of the system. In this
context, reference was made to the legislature’s intention to ultimately replace the
common-law system of compensation with a set of limited no-fault benefits which
would form part of a broader social security net as public financial support for people
who are poor, have a disability or are vulnerable. 57
The amendments introduced by the RAFA Act provide further evidence of the primary
consideration that underlies the enactment of motor vehicle accident legislation in
South Africa, namely that it aims to provide compensation where the risk of harm
associated with motor vehicle accidents materialises. 58 As explained by the Minister
of Transport, although the economic viability of the RAF is an important goal, the
ultimate vision is that a new system of compensation for motor vehicle accident victims
53 Department of Transport Policy Paper for the RABS (2011) 13. See also paragraph 3.2.3.3.1 below
for a detailed discussion of the ways in which the fault requirement has provided motivation for
legislative development of the law of delict.
54 2011 (1) SA 400 (CC).
55 2011 (1) SA 400 (CC) para 15. See also paragraph 5.5.1.1 in chapter 5.
56 Law Society of South Africa v Minister for Transport 2011 (1) SA 400 (CC) paras 35, 75-80, 103. See
also paragraph 5.5.1.1 in chapter 5.

57 2011 (1) SA 400 (CC) paras 44-45.
58 See also paragraph 5.5.1.1 in chapter 5.
143
must be established and integrated into a comprehensive social security system that
offers life, disability and health insurance cover for all accidents and diseases. 59 To
achieve the desired reform, the legislature therefore drafted the Road Accident Benefit
Scheme Bill (“RABS”) in 2014. Should it be enacted, the current fault-based system
of liability administered by the RAF will be replaced by a new social security scheme
for road accidents.
The need to further the constitutional right to social security as a consideration

justifying legislative intervention in the law of delict will be analysed in paragraph 3.2.2
below. For the purpose of this part of the chapter, it is sufficient to note here that the
proposed RABS is aimed not only at continuing the achievement of the primary aim
outlined by its predecessors, namely the protection of the victim’s interests by ensuring
that he is properly compensated, but also at the promotion of the wrongdoer’s interest
insofar as the victim’s common-law right to claim damages for residual harm has been
abolished. In doing so, it may be argued that the legislature seeks to address not only
the risk of no compensation to which road users are generally exposed, but also the
risk of liability to which culpable road users may be exposed. 60
From the above, it appears that motor vehicle accident legislation may be regarded as
“social legislation” 61 aimed at the “widest possible protection and compensation”62 of
road users by compensating them against harm that arises from the culpable and
unlawful driving of a motor vehicle.
The RAF Act, its predecessors and its proposed successor provides for the
substitution of a compensation fund or an insurance company in the place of a culpable
wrongdoer to ensure compensation for a motor vehicle accident victim or his family. 63
These legislative developments resulted in a conceptual shift from protection of the
wrongdoer to acceptance of the need to provide protection and support for all victims
of road accidents. 64
59 Paras 44-45.
60 See the statement of Nugent JA in RAFC Report of the Road Accident Fund Commission 103: “The
two problems [relating to motor vehicle accidents] are: “People who are driving cannot afford the risk of
knocking people over and the people who are using the roads cannot afford the risk of being knocked
over.”
61 Pithey v Road Accident Fund 2014 (4) SA 112 (SCA) para 18 (footnotes omitted).
62 Para 18.
63 Olivier “Social Security” in LAWSA 13(3) para 159.
64 Para 159.
144
The replacement of the wrongdoer by the RAF undermines the notion that the victim’s
harm should be compensated – or corrected – by the person who culpably and
wrongfully caused it. The fund’s existence is therefore arguably not aligned with the
so-called corrective justice account for the South African law of delict. 65
Proponents of the corrective justice account highlight the fact that, properly
understood, there must be correlativity between the person who has the duty to rectify
the wrong and the person who has suffered the wrong. The corrective justice account
of the law of delict may be contrasted with a distributive justice-based justification for
this branch of the law. Whereas the latter is concerned with the allocation of resources
throughout society as a whole and the criteria on which such an allocation occurs, the
basic idea with the former is to do justice between two parties, i.e. it is concerned with
whether there should be any allocation and if so, to what extent and in what form and
on what basis from one person back to another. In other words, from a corrective
justice point of view, the law of delict is concerned with justice as between a plaintiff
and wrongdoer. Likewise, it is not – and should not – be concerned with a global
economic picture. Rather, the principles of bipolarity, correlativity and equality should
obtain.
Nonetheless, the RAF may be said to fulfil the primary function of the law of delict
(compensation of harm), remains based on delictual principles for the time being and
is regarded by courts and academics as constituting a significant part of the South
African law of delict. 66
65 See A Fagan “The right to personal security” in E Reid & D Visser (eds) Private Law and Human
Rights: Bringing Rights Home in Scotland and South Africa (2013) 130-155. See generally E Weinrib
The Idea of Private Law (1995); E Weinrib “Corrective Justice in a Nutshell” (2002) 52 University of
Toronto Law Journal 34; G Fletcher “Fairness and Utility in Tort Theory” (1972) 85 Harvard Law Review
537; J Coleman “Corrective Justice And Wrongful Gain” (1982) 11 Journal of Legal Studies 421–440;
J Coleman “Property, Wrongfulness, and the Duty to Compensate” (1987) 63 Chicago-Kent Law
Review 451-470; J Coleman “The Mixed Conception Of Corrective Justice” (1992) 77 Iowa Law Review
427–444; J Coleman Risks and Wrongs (1992); J Coleman “Tort Law and the Demands of Corrective
Justice (1992) 67 Indiana Law Review 349–378; J Coleman “The Practice of Corrective Justice” in DG
Owen (ed) Philosophical Foundations of Tort Law (1995) 53-73; J Coleman “Doing Away with Tort
Law” (1995) 41 Loyola of Los Angeles Law Review 1148–1170. See paragraph 6.3.2 in chapter 6 for
concluding remarks about the function of the South African law of delict and whether it may be
understood as solely aimed at achieving corrective justice.
66 For example, a discussion of the salient provisions of the RAF is included in Loubser & Midgley (eds)
Law of Delict 294-301.

145
Lastly, it may be said that, although the legislative intervention did not result in the
decrease of the risk of harm arising from the use of motor vehicles, i.e. in securing
general road safety or deterring future motor vehicle accidents, or in deterring future
motor vehicle accidents, 67 it was successful insofar as addressing the risk of litigating
“against drivers who often were not in a financial position to compensate accident
victims for their losses.” 68
3.2.1.3 Occupational injuries and diseases
The exposure to risk of harm and associated risk of no compensation has also served
as significant motivation for the enactment of legislation aimed at compensating
employees who are injured or become diseased during the course and scope of their
employment. 69 Generally, legislative intervention within this context may be justified
on the basis that employers often expose their employees to risks specifically
associated with their activities as employees, i.e. to suffer an accident at work or to
sustain an illness that is related to specific health risk of the task assigned to the
employee. 70
Apart from exposing their employees to specific risks associated with their
employment activities, an employer exposes the employee to the additional risk of no
compensation in the event that the risk of harm materialises. Of course, the exposure
to these risks occur while the employer stands to benefit financially from the efforts of
his employee. 71
A brief overview of the historical development of legislative intervention within this

context is provided in the rest of this paragraph, and attention is paid to the policy
considerations that justified reform of this area of the law.
67 See the table in paragraph 3.2.1.2.

68 Department of Transport Policy Paper for the RABS 6.
69 See Jooste v Supermarket Trading (Pty) Ltd 1999 (2) SA 1 (CC) 1; Markesinis & Unberath The
German Law of Torts 728-230; S Deakin, “Tort Law and Workmen’s Compensation Legislation:
Complementary or Competing Models?” in TT Arvind & J Steele (eds) Tort Law and the Legislature
(2013) 253 253-257.
70 Markesinis & Unberath The German Law of Torts 728.
71 See further below for an explanation of the operation of the enterprise risk theory in this context.
146
Prior to legislative intervention, the position of South African employees who were
injured at the workplace was similar to that of motor vehicle accident victims in the pre-
legislation era, i.e. they had to institute a common-law delictual claim against their
employer to obtain compensation for the harm they had suffered. 72 In doing so, they
were required to prove that, amongst other things, their employer was at fault, which
typically meant that they had to prove their employer’s negligence. As was the case
with motor vehicle accident legislation, the South African statutes that were enacted
to develop the law of delict in this context were based on similar English statutes
enacted during the course of the late 19th and early 20th centuries. 73
Despite it being possible for employees in 19th century England to institute tort claims
against their employers for personal injuries suffered in the workplace as a result of
their employers’ negligence, employees generally did not do so. 74 This may be as a
result of a variety of legal considerations, including the difficulty in proving fault in the
form of negligence, 75 and the existence of “several draconian defences”, 76 i.e. the
doctrine of common employment, contributory negligence and volenti non fit iniuria
which, to a large extent, enabled employers to evade tortious liability for harm caused
to an employee during the course and scope of employment. 77 Additional social,
political and economic considerations that made it problematic for English employees
to institute tort claims against their employers have been described as follows: 78
“[M]any workers never thought of suing because they were not even aware that a wrong had
been done to them. An accident was an everyday occurrence and part of their way of life, and
the risk of injury was seen as in the hands of Fate rather than the employer. If workers were
aware that a wrong had been done, they were often ignorant of the possibility of bringing a claim.
Those who knew of the tort system found it very difficult to get legal advice. If they did sue, they
faced the prospect of incurring legal costs. A more significant deterrent was the likelihood that a
tort claim would lead to the loss of work-related benefits such as employer’s sick pay, or
continued employment in an easier job, or medical treatment from work doctors. Suing an
employer often meant antagonising the most powerful men in the region and jeopardizing not
72 Workmen’s Compensation Commissioner v Norwich Union Fire Insurance Society Ltd 1953 (2) SA
546 (AD) 551.
73 Victoria Falls Power Co. Ltd v Lloyd No. 1908 TS 1164 1165, 1182; Select Committee of the House
of Assembly Report of the Select Committee on Compensation to Workmen (1904) 15, 17-18.
74 MA Stein “Victorian Tort Liability for Workplace Injuries” (2008) University of Illinois Law Review 935
submits that, in England, the first reported decision of an employer being sued in tort by his employee
for a personal injury suffered at the workplace may be traced to 1837.
75 See paragraph 3.2.3 below.
76 R Lewis “Employer’s Liability and Workers’ Compensation: England and Wales” in K Oliphant & G
Wagner (eds) Employer’s Liability and Workers’ Compensation (2012) 137 138.
77 Deakin et al Tort Law (2013) 541-545; Deakin “Tort Law and Workmen’s Compensation Legislation:
Complementary or Competing Models?” in Tort Law and the Legislature 253-257.

78 Lewis “Employer’s Liability and Workers’ Compensation: England and Wales” in Employer’s Liability
and Workers’ Compensation 139.

147
only one’s employment prospects, but also one’s housing, church membership and even access
to town poor relief. Nor could workers easily endure the lengthy, complicated and uncertain
litigation process itself. Their claims then were opposed by the best lawyers and by morally
questionable defence strategies. The final difficulty faced by the workers was that they often
needed what tort could not supply: urgent recompense to replace their wage loss.”
Other policy considerations that influenced the English legislature to interfere with the
status quo and to develop the law relating to harm suffered by employees in the course
and scope of their employment, may be summarised as follows: the demand for
workplace safety, the continuing pressure exerted by trade unions and industrial
disputes, the courts’ reaffirmation of workers’ entitlement to a high degree of
protection, the steady growth of litigation concerning workplace accidents that became
an accepted part of the employment system and the fact that liability insurance
became readily available for employers after 1880. 79 In addition, the industrial
revolution in 19th century England caused a significant increase in industrial accidents
in the form of railroad crashes, coalmine explosions, steamboat fires, etc. 80
The English legislature responded by enacting the Workmen’s Compensation Act in

1897. It thereby introduced a no-fault based compensatory system outside tort. 81 The
1897 Act imposed a statutory duty on employers to make limited payments to the
victims of industrial accidents, irrespective of whether those injuries resulted from the
culpable wrongdoing of the employer – as long as the accidents arose out of and in
the course of employment. 82 The decision to hold the employer liable regardless of
whether or not they acted culpably may be explained with reference to the concept of
enterprise risk or enterprise liability. 83 In this regard, Deakin writes: 84
“The employer as ‘enterprise’ has a duty of care to have regard for the safety and welfare of its
employees and incurs liability to third parties injured by the negligence of those employees not
simply because it has ‘deep pockets’ or because of a supposed symmetry between risks and
profits, but because its organisational capacity enables it to manage the risks of injury internally,
through the bureaucratic structures of the firm, while its financial resources and position in the
market make it possible for it to absorb and channel potential liabilities through insurance.
79 S Hedley “Tort and Personal Injuries, 1850 to the Present” in TT Arvind & J Steele (eds) Tort Law
and the Legislature (2013) 235 235-242.
80 JM Kleeberg (2003) “From Strict Liability to Workers’ Compensation: The Prussian Railroad Law, the
German Liability Act, and the Introduction of Bismarck's Accident Insurance in Germany, 1838-1884”
Journal for International Law and Politics 57-58.
and Workers’ Compensation 140.

and Workers’ Compensation 140; D Brodie Enterprise Liability and the Common Law (2010) 2.
83 Brodie Enterprise Liability 2-7.
84 Deakin “Tort Law and Workmen’s Compensation Legislation: Complementary or Competing
Models?” in Tort Law and the Legislature 254.

148
Insurance […] makes it possible for firms to shift certain losses, but also sets implicit standards
of care, which operate through the monitoring activities, undertaken by liability insurers.”
The first local legislation aimed at addressing the issue of compensation for employees
was the Cape Employer’s Liability Act 35 of 1886, which was replaced by the
enactment of the Workmen’s Compensation Act 40 of 1905 (Cape of Good Hope). 85
Many of the policy considerations underlying the 1905 Act as well as succeeding
legislative interventions are reflected in the 1904 Report of the Select Committee on
Compensation to Workmen.
From its report, it is clear that there was significant concern about securing
compensation for injured employees and doing so as “quickly and as cheaply as
possible.”86 It was stated that one of the chief advantages of introducing statutory
reform would be that it would provide what the law of delict failed to do at the time, i.e.
the speedy provision of a fixed amount of money in lieu of the lost wages and to
“ensure that the sum shall be paid with as little litigation as possible.” 87
Another consideration that justified the legislature’s intended development of this

branch of the law was the fact that, in “ninety-nine cases out of every hundred the
workman does not know what he can demand, and if his employer pays him anything
at all he considers it as an act of charity. In the great majority of cases he has an
action, and does not bring it.” 88
It was also argued that the enactment of legislation would undermine the influence
which the defence of contributory negligence had on an employee’s potential common-
law delictual claim for damages, i.e. to give the employee an action despite the fact
that his negligence contributed towards the accident. 89
85 The Act is based on the English Act of 1897: Select Committee Report of the Select Committee on
Compensation to Workmen (1904) 15, 17. See JJ Jansen van Vuuren A Legal Comparison between
South African, Canadian and Australian Workmen’s Compensation Law Unpublished LLM thesis
University of South Africa (2013) 25.
86 Select Committee Report of the Select Committee on Compensation to Workmen 2. See also at 9,
14 where it is made clear that all relevant parties sought a way to deal with employer and employee
disputes as quickly and cheaply as possible and that what is required is “simple machinery” for securing
compensation for the injured employee.
87 Select Committee Report of the Select Committee on Compensation to Workmen 12.
88 14.
89 14. It may be noted that the doctrine of common employment was not considered to be a part of the
South African common law of delict: Waring & Gillow v Sherborne 1904 TS 340. Accordingly, unlike the
position in England, it did not play the same role in motivating legislative change.
149
Lastly, the employees sought to improve their safety: 90
“From a workmen’s point of view the Bill is a most desirable one in every respect. At the present
time workmen are entirely dependent on the generosity of their employers for compensation.
Now, gentlemen, it is but natural that an employer of labour should desire to obtain the utmost
amount of work for the least possible cost; in the pursuit of that object he is apt to overlook certain
precautionary measures which he should take to ensure the safety of his workmen, and we
maintain that there should be such an Act so based that it would compel the employer to take
these precautionary measures.”
Therefore, it seems that the decision by the legislature to develop the law of delict
relating to the compensation of employees were motivated by similar policy
considerations than those underlying the English legislature’s development of law of
negligence regarding workplace injuries and diseases.
A similar statute, the Workmen’s Compensation Act 36 of 1907, was enacted in the
Transvaal. 91 The Transvaal Act was “almost identical”92 to the English Workmen’s
Compensation Act of 1906. The Act applied to the whole country after unification in
1910, but was replaced by the Workmen’s Compensation Act 25 of 1914 which, in turn
included a series of industrial diseases following an amendment in 1917 through the
Workmen’s Compensation (Industrial Diseases) Act 13 of 1917. 93 Importantly, both
these Acts required employees to prove fault on the part of the employer. 94
In its early form, the Workmen’s Compensation Act was ineffective at providing
adequate compensation because employers were not compelled to insure their
employees against the risk of workplace injuries. 95 As a result, employers that did not
have insurance could face insolvency if they were held liable for their employees’
harm. Also, injured or diseased employees were exposed to the risk that the employer
would not be in a position to provide compensation, thereby rendering the employee
potentially unable to earn further income. 96
By 1930, and with the benefit of using the English statute as example, employees,
industry and the South African government recognised the need for compulsory
90 Select Committee Report of the Select Committee on Compensation to Workmen 64-65.

91 Van Vuuren Workmen’s Compensation Law 25.
92 Victoria Falls Power Co., Ltd v Lloyd, No. 1908 TS 1165, 1172.
93 Van Vuuren Workmen’s Compensation Law 26; Mankayi v Anglogold Ashanti Ltd 2011 (3) SA 237
(CC) paras 45-46. At that stage, similar statutes were also in place in France, Germany, New Zealand
and certain Australian states. See Select Committee Report of the Select Committee on Compensation
to Workmen 14.
94 Mankayi v Anglogold Ashanti Ltd 2011 (3) SA 237 (CC) paras 45-46.
96 26.
150
insurance. 97 The 1914 and 1917 statutes were accordingly replaced by the Workmen’s
Compensation Act 59 of 1934, which provided for a system of compensation to be
paid by the employer if an employee suffered harm as a result of an accident arising
in the course and scope of his employment. Pursuant to the passing of the Act,
employees were no longer required to prove fault on the part of the employer to obtain
compensation. 98 Importantly, the Act made insurance compulsory through private
companies rather than a state fund favoured by workers and trade unions. 99 The office
of the Compensation Commissioner was established and tasked with the mediation of
compensation settlements between employees and employers that was ultimately
funded through the compulsory insurance obtained by employers. 100
The Workmen’s Compensation Act 30 of 1941 replaced the 1934 Act and introduced
a new system of compensation by establishing a state “accident fund” 101 to which all
employers would contribute on the basis of employer’s wage budgets 102 and
from which employees were to be compensated. 103 Employees were entitled to
compensation from the fund if they could prove that they had suffered harm as a result
of an “accident arising out of and in the course of […] employment and resulting in a
personal injury”. 104 While the Act established a compensation fund, it also indemnified
employers against potential delictual claims which employees may have had against
them. 105 In R v Canquan, 106 the court summarised the purpose of the Act by stating
that it was “designed to protect the interests of employees and to safeguard their rights,
and its effect is to limit the common law rights of employers and to enlarge the common
law rights of employees.”
97 See D Budlender “The Workmen’s Compensation Act” (1984) South African Labour Bulletin 9(4) 22
22-41.
98 Mankayi v Anglogold Ashanti Ltd 2010 (5) SA 137 (SCA) para 16.
99 United States Agency International Development Worker’s Compensation in the Republic of South
Africa (2008) 3.
101 See section 64 of the Act.
103 Mankayi v Anglogold Ashanti Ltd 2010 (5) SA 137 (SCA) para 17.
104 Section 2 of the Act.
105 Section 7: “(a) no action at law shall lie by a workman or any dependant of a workman against such
workman's employer to recover any damages in respect of an injury due to accident resulting in the
disablement or the death of such workman; and (b) no liability for compensation on the part of such
employer shall arise save under the provisions of this Act in respect of any such disablement or death.”
106 1956 (3) SA 355 (E) 368.
151
The COIDA repealed the Workmen’s Compensation Act and came into operation in
1994. It provides for the compensation of employees injured in accidents107 that arose
out of and in the course of their employment, 108 or who contracted occupational
diseases. 109 In accordance with section 15 of the Act, a statutory compensation fund
was established to which employers are required to contribute 110 and from which
compensation and other benefits are paid to employees. 111 In addition to establishing
a fund from which an employee may obtain limited compensation, section 35(1) of the
Act abolished the employee’s common-law right to institute a delictual claim against
his employer for any harm resulting from accidents suffered during the course and
scope of the employment. 112 When instituting his statutory claim against the
compensation fund, an employee is not required to prove fault. 113
In the leading judgment on the matter, Jooste v Supermarket Trading (Pty) Ltd, the
CC described this development as follows: 114
107 “Accident” is defined as an “accident arising out of and in the course of an employee's employment
and resulting in a personal injury, illness or the death of the employee.”
108 See MEC for Health v DN 2015 (1) SA 182 (SCA) for a discussion on the course and scope of
employment requirement within the context of the COIDA. It may be noted that, apart from the COIDA
and its antecedent legislation, which relates to the interests of all employees in industry generally
(including commerce and services), another strand of legislative development concentrated specifically
on the interests of mineworkers. The Occupational Diseases in Mines and Works Act 78 of 1973 (and
its predecessors) was a legislative response to the deleterious diseases contracted by mineworkers. Its
history may be briefly summarised as follows: the Miners' Phthisis Allowances Act of 1911 was first
enacted in 1911, and succeeded in 1912 by the Miners' Phthisis Act of 1912. The 1912 Act was
amended by the Miners’ Phthisis Amendment Act of 1914. The Miners’ Phthisis Amendment Act of
1914 was succeeded by the Miners' Phthisis Act of 1916 (1916 Act). It repealed parts of the 1912 Act
and the whole of the Miners’ Phthisis Amendment Act of 1914. The Miners' Phthisis Acts Consolidation
Act of 1925 was enacted in 1925 and was in turn repealed by the Silicosis Act of 1946. The
Pneumoconiosis Act of 1956 superseded the Silicosis Act. The 1956 Act was superseded by the
Pneumoconiosis Compensation Act of 1962. In 1973, the Occupational Diseases in Mines and Works
Act 78 of 1973 repealed previous legislation and consolidated the law relating to the payment of
compensation in respect of certain diseases contracted by persons employed in mines and work. See
further Mankayi v Anglogold Ashanti Ltd 2011 (3) SA 237 (CC) paras 26-35.
112 Section 36 of the Act preserves and regulates an employee’s rights against a third party who may
incur liability to the employee.

113 Although the Act therefore continues its predecessor’s abandonment of the fault requirement, it does
play a limited role. Section 56(1) of the Act provides that, if a person has met with an accident or
contracted an occupational disease owing to his or her employer’s negligence, the employee may apply
to the commissioner to receive increased compensation in addition to the compensation normally
payable in terms of this Act.
114 1999 (2) SA 1 (CC) para 15. See also MEC for Education, Western Cape Province v Strauss 2008
(2) SA 366 (SCA) paras 11-12; Healy v Compensation Commissioner 2010 (2) SA (E) 470 para 11;
Sanan v Eskom Holdings Ltd 2010 (6) SA 638 (GSJ) para 8; MEC for Health, Free State v DN 2015 (1)
SA 182 (SCA) paras 6-7; Thomas v Minister of Defence and Military Veterans 2015 (1) 253 (SCA) para
6.
152
“The Compensation Act supplants the essentially individualistic common-law position,

typically represented by civil claims of a plaintiff employee against a negligent defendant
employer, by a system which is intended to and does enable employees to obtain limited
compensation from a fund to which employers are obliged to contribute.”
As was the case with motor vehicle accidents, the establishment of a statutory
compensation fund appears to undermine the idea that compensation should be paid
by the person who culpably and wrongfully caused it, in an attempt to thereby correct
his wrong. The existence of a compensation fund in this context is therefore similarly
not aligned with the so-called corrective justice explanation for the law of delict. 115
Notwithstanding, it is successful in achieving the function set out by the law of delict –
compensation of harm. Arguably, more injured and diseased employees receive
compensation from the fund than would otherwise have been the case if they were
required to institute common-law delictual claims against their employers. As will be
expanded upon in chapter 6, it is proposed that the COIDA constitutes an important
part of the South African law of delict, 116 and that it requires that ideas about the role
of the law of delict in the South African context be revisited.
Against this background, it may be said that the development of the law of delict by
the enactment of legislation that provides compensation for workplace-related injuries
and diseases may be regarded as a response to the risk of injury to which the
employee is exposed as a result of his employment as well as the potential risk of not
being able to recover any compensation for the harm that is suffered once the risk
materialises. In Jooste v Supermarket Trading (Pty) Ltd, 117 the CC confirmed the role
of risk and remarked that, in the absence of any legislation “there would be no
guarantee that an award would be recoverable because there would be no certainty
that the employer would be able to pay large amounts in damages. It must also be
borne in mind that the employee would incur the risk of having to pay the costs of the
employer if the case were lost.”
The exposure to risk has also played a significant role in the adoption of workplace
legislation in foreign jurisdictions. The adoption of the no-fault based legislation to
115 See Fagan “The right to personal security” in Private Law and Human Rights: Bringing Rights Home
in Scotland and South Africa 130-155. As indicated earlier, see paragraph 6.3.2 in chapter 6 for
concluding remarks in this context.
116 For example, a discussion of the salient provisions of the COIDA is included in Loubser & Midgley
(eds) Law of Delict (2012) 196-200.

117 1999 (2) SA 1 (CC) para 15.
153
compensate injured and diseased employees is “consistent with a widespread moral

idea that it is not unjust to impose a strict liability on those who cause loss while taking
risks in pursuit of commercial profit, even where the risk is unforeseeable or cost-
justified.”118
In conclusion, it appears that the leading policy consideration underlying legislative

development of the law of delict in this field is the attempt to ensure that employees
will receive compensation, albeit limited, in respect of the materialisation of an
employment risk during the course and scope of employment. 119 It appears that the
notion of enterprise liability best explains why to impose liability for harm specifically
on employers.
3.2.1.4 Defective consumer products
The design, manufacture, distribution and sale of products and services are, generally,
central to the wealth and welfare of any society, but bring about disease, injury and
even death for a wide range of individuals. 120 The rise of industrialisation in the 19th
century and consumerism in the 20th century led to a substantial increase in the
manufacturing and distribution of consumer products. 121 This meant that, more than
ever before, consumers were being exposed to an unremitting series of manufactured
goods. Because technology grew more sophisticated and often coupled with expertise,
consumers knew very little about the products that reached them. It is therefore
unsurprising that many of these products posed a significant risk to the wellbeing of
consumers who chose to make use of them. 122 Even where the risk of harm was not
particularly great, it was accepted that, should it materialise, the harm suffered by the
consumer would be severe. 123
In response to the rise in consumer products, the growing risk of exposure to harm
and the difficulty of holding manufacturers liable for the harm suffered by consumers
as a result of defective products, the South African legislature introduced a strict
118 Stapleton Product Liability (1994) 195.

119 Cane Atiyah’s Accidents 332.
120 E van Eeden Consumer Protection Law in South Africa (2013) 367.
121 Stapleton Product Liability 9-16.
122 Van Eeden Consumer Protection Law 370.
123 W van Gerven, P Larouche & J Lever J (eds) Cases, Materials and Text on National, Supranational
and International Tort Law (2000) 599.

154
liability regime for harm suffered as a result of defective products when it enacted the
CPA. 124 Set out below is a brief overview of the historical development which
culminated in the statutory reform of the law of delict in this context.
As is the case with the rise of product liability as a distinct area of the law in a variety
of other jurisdictions, this development in the South African law may be traced back to
progress made by the courts in the United States of America (“USA”). Indeed, the
judicial development of the law by American courts is generally regarded as the
precursor to the global increase of legislative intervention aimed at compensating
victims of defective consumer products. 125
As will be discussed in greater detail below, the American judicial innovations enabled
these victims to litigate against the sellers and manufactures of defective products
through alterations of the existing tort or contract law. 126 The courts’ approach was
ultimately captured in the American Law Institute’s Second Restatement of Torts in
1965, whereafter, as Reimann describes: 127
“[in] the 1960s and 1970s, the principle of strict product liability swept through the United States,
and became the rule in most, though not all, states of the Union. European scholars and policy
makers watched this development with great interest. In part, they were fascinated by the
activism of the American courts, which fashioned a new consumer protection regime”.
Because the rise of the strict liability regime is generally regarded as originating within
the American courts, 128 special attention will be placed on the judicial expansion of
liability for defective consumer products within this jurisdiction.
The economic expansion that industrialisation produced in especially the USA, was
accompanied by a significant increase in the volume of consumer transactions. 129 The
types of products manufactured and sold by way of these transactions posed a
124 The Act came into effect in 2010.

125 M Reimann, “Product Liability” in M Bussani & AJ Sebok (eds) Comparative Tort Law: Global
Perspectives (2015) 250-279 251. See also Van Eeden Consumer Protection Law in South Africa 1-5,
21-22; M Reimann, “Liability for Defective Products at the Beginning of the Twenty-First Century:
Emergency of a Worldwide Standard?” (2003) 51(4) American Journal of Comparative Law 751 756,
761; Stapleton Product Liability 3-36.
126 Reimann “Product Liability” in Comparative Tort Law 251.
127 Reimann “Product Liability” in Comparative Tort Law 251. See also Van Eeden Consumer Protection
Law in South Africa 1-5, 21-22; Reimann (2003) American Journal of Comparative Law 756; Stapleton
Product Liability 3-36.
128 Reimann “Product Liability” in Comparative Tort Law 251. See also Van Eeden Consumer Protection
Law in South Africa 1-5, 21-22; Reimann (2003) 51(4) American Journal of Comparative Law 756-761,
835; Stapleton Product Liability 3-36.
129 Stapleton Product Liability 10.
155
significantly higher risk of bodily injuries or property damage than was the case earlier
during the 19th century: 130
“Sometimes the nature of the new type of good made inspection difficult or impossible at least
without expert technical advice, which was often in short supply. Even if the intrinsic nature of the
good did not produce this situation, the volume of transactions and the new forms in which
products were packaged and delivered often did. But most importantly of all, inspection was often
rendered difficult if not impossible – at least for commercial buyers in the chain – by the increasing
number of contracts formed between parties acting at a distance, in some cases before the
relevant goods had come into existence, and the speed at which goods were passed down the
lengthening commercial chain.”
Most American consumers who were harmed by manufactured products were faced
with a stumbling block; because they were not contractually linked to the manufacturer
in question, they lacked a contractual remedy. 131 In cases where a consumer did have
the option of instituting a contractual claim against a manufacturer, there was the
possibility that it did not have sufficient funds or insurance to compensate the injured
consumer for the harm suffered. In other words, much like the victims of motor vehicle
accidents or those who suffered from injuries or diseases sustained during the course
and scope of their employment at the turn of the previous century, consumers were
exposed to an increased risk of harm and its accompanying risk of receiving limited or
no compensation.
To deal with this problem, American courts developed contract law in a series of cases
in the early 20th century 132 so that the requirement of privity of contract was partially
relinquished and less reliance was placed solely on contract to protect consumers from
harm as a result of defective products. 133 The courts expanded the liability of
manufacturers by relying on the idea of a transmissible warranty that goods are free
of defects. 134 As a result, the action for breach of warranty was ultimately made
available not only to the immediate purchaser of a product, but also to other persons
who may reasonably have expected to use, consume or be affected by the goods. 135
130 11.
131 See Stapleton Product Liability 9-16; Loubser & Reid Product Liability 4-9.
132 Deakin et al Tort Law (2013) 590-607.
133 See Loubser & Reid Product Liability 24.
134 Loubser & Reid Product Liability 24.
135 The abandonment of privity of contract in favour of protecting a broader consumer interest is reflected
in the well-known judgment of Traynor J in Escola v Coca-Cola Bottling Co of Fresno 24 Cal.2d 453,
150 P.2d 436, where it was noted that privity should be abandoned and that the public policy
considerations underlying the implied warranty of merchantability should be used to construct an
independent and strict liability for defective products in tort. Further extension took place in Henningsen
v Bloomfield Motors Inc. 32 N.J. 358, 161 A.2d 6. See also Loubser & Reid Product Liability 24;
Stapleton Product Liability 21.
156
In Greenman v Yuba Products, 136 the Supreme Court of California took the first steps
to move away from the contractual route and laid down a principle of strict liability in
tort for defective consumer products. 137 The gradual development of the
manufacturer’s liability in American courts ultimately led to the adoption in 1965 of
section 402A of the American Law Institute’s Restatement (Second) of Torts, which
purported to provide a strict liability regime for defective products. 138
During this time, victims of defective consumer products in European jurisdictions

generally had to seek refuge in the law of contract and tort law if they intended to seek
compensation for their harm. 139 In the UK, for example, Stapleton writes that “[l]ittle
changed in the relevant UK common law from the removal of the privity barrier to tort
claims for physical loss in Donoghue v Stevenson (1932) until the turn of the 1960s.”140
A victim of a defective product could thus sue a retailer for the harm to his person or
property under the warranties as to the quality of the product implied under the Sale
of Goods Act. 141 However, courts continued to give effect to the privity requirement in
contract law and a third party who suffered harm, regardless of the foreseeability
thereof, was therefore not entitled to sue for breach of contract. 142
Further, consumers who intended to sue someone other than the immediate seller of
the defective product, could do so only in the event that such a person had made an
express warranty with regard to the quality of the product. 143 Despite the House of
Lord’s confirmation in Donoghue v Stevenson 144 that the ultimate consumer had a tort
claim against the ultimate manufacturer of the defective product, the plaintiff was still
required to prove negligence. 145 The end result therefore was that, compared to the
developments initiated by American courts, victims of defective consumer products in
136 59 Cal 2d 57.

137 G Howells, “Product Liability” in J Smits (ed) Elgar Encyclopedia of Comparative Law (2006) 578-
587 579.
139 See generally Stapleton Product Liability 37-45; Markesinis & Unberath German Tort Law 748-749,
881-883; Reimann “Product Liability” in Comparative Tort Law 251-253.

141 Stapleton Product Liability 37; Deakin et al Tort Law 590.
142 Deakin et al Tort Law 590.
143 Stapleton Product Liability 37-38.
144 [1932] AC 562.
145 Deakin et al Tort Law 590.
157
the UK received considerably less protection against the risk of harm which
manufactured products carried with them.
The legal position was similar in Germany, where, prior to the legislature’s ultimate
intervention in 1989, 146 liability for harm arising from defective consumer products was
regulated by tort and contract law. 147 In 1956 the German Bundesgerichtshof 148
denied the driver of a new bicycle a remedy in tort when the handlebar broke because
of the technical deficiency of the steel, resulting in the plaintiff’s bodily injuries. The
court held that the weakness in the steel was practically undiscoverable and that the
manufacturer had not breached its duty of care and was therefore not negligent.
However, in 1968, the same court brought about a “fundamental change” 149 when it
held that, “if the cause of the damaging factor can only be located within the premises
of the producer, his negligence is presumed.”150
This judicial attempt at developing the law to assist the victim of a defective consumer
product in finding compensation for his harm was borne out of considerations related
to fairness: “[i]t would be unjust for the victim […] to be forced to prove circumstances
within the enterprise which would only allow the conclusion that the producer was
negligent. The factory of the manufacturer is not accessible to him. It is therefore the
defendant who must show that he did not act negligently.” 151 This change in the legal
position “was no doubt influenced by the developments in the USA […] and the
adoption of s 402A of the Restatement of Torts Second.”152
Despite the judicial development to assist victims of defective products in claiming

compensation, Taschner maintains that the German courts provided only “half-way
solutions [which] showed the need to change the law, [and that] they were not definite
ways to reach a satisfactory result.” 153 Similarly, writing about European jurisdictions
generally, Reimann states that the “courts in Western Europe struggled to protect
146 The Products Liability Act of 1989.

147 R Grote “Product Liability under German and European Law” in M Wendler, B Buecker & B Tremml
(eds) Key Aspect of German Business Law (2006) 111-120 111.
148 BGH VIZR 36/55, ‘Der Betrieb’ 1956 at 592.
149 D Fairgrieve Product Liability in Comparative Perspective (2005) 100.
150 HC Taschner “Product liability: basic problems in a comparative law context” in D Fairgrieve (ed)
Product Liability in Comparative Perspective 155 159.

151 159. See also Reimann “Product Liability” in Comparative Tort Law 252.
152 Fairgrieve Product Liability in Comparative Perspective 100.
153 Taschner “Product liability: basic problems in a comparative law context” in Product Liability in
Comparative Perspective 159.

158
victims of defective products without openly breaking with the traditional rules of
contract […] and tort.”154
Dissatisfaction concerning the inability of existing liability regimes to provide redress

for consumers therefore grew steadily. 155 The concern was amplified by the
thalidomide drug disaster of the 1960s. During 1961 it was recognized that the
pregnancy drug thalidomide had caused birth defects in the children of some of its
users. Almost 8 000 children in over 30 countries were affected. 156 The difficulties that
were experienced by the deformed children in obtaining compensation from the
manufacturer assisted in focusing attention on the uncertainties and difficulties
experienced when instituting a tort claim for negligence as well as the slow and
expensive process of litigation. 157
Therefore, at the time that proposals for a European Community directive on Products
Liability were first considered in the 1970s, it was not possible to speak of product
liability law as such in either Germany or England. 158 In both countries, the legislature
intervened by adopting product liability legislation subsequent to the Member States
of the European Community adoption of Council Directive 85/374/EEC on 25 July
1985. The directive had the “dual aim of harmonising the conditions of competition in
the internal market and ensuring adequate protection for victims of unsafe products
across the Member States.”159 Broadly, the directive provides that, where someone
can prove that his bodily integrity or property has been physically harmed by a
defective product that was put into circulation in the ordinary course of business, he
can institute a claim against its manufacturer, importer, own-brand supplier or a mere
supplier, without having to prove negligence against any specific party or that the
defendant caused the defect. 160
In England, the enactment of the Consumer Protection Act of 1987 can be traced to
this directive and it seeks to give effect to its principles. Generally, this Act, as read
with the directive, imposes strict liability on manufacturers, distributors and retailers
154 Reimann “Product Liability” in Comparative Tort Law 252.

157 42.
158 Deakin et al Tort law 590; Markesinis & Unberath German Tort Law 748-749, 881-883.
160 See Stapleton Product Liability 49.
159
for harm arising from defective products. Similarly, in Germany, the Products Liability
Act of 1989 followed the 1985 Directive and introduced a strict liability on
manufacturers for harm arising from defective products. 161
In contrast to the American, English and German legislatures, the South African
legislature took significantly longer before it finally decided to develop the delictual
principles relating to harm suffered as a result of defective products. The CPA was
enacted in 2008 and only became operative in 2010. Section 61(1) of the Act
introduced a framework in terms of which producers, importers, distributors or retailers
may be held strictly liable for bodily injuries or property damage which has been
brought about by the supply of unsafe goods or a product failure, defect or hazard, or
inadequate instructions or warnings for the use of certain goods.
Prior to its enactment, however, the legal position was that a consumer who suffered
harm as a result of a defective product could institute either a contractual claim against
the seller of the product in question or, alternatively, pursue a delictual remedy against
a member of the supply chain. The South African law of contract, however, did not
undergo a similar development with regard to the extension of warranties and
consumers who pursued this route remained bound by the principle of privity of
contract. 162 In terms of the South African common law of contract, a manufacturer may
be held liable to a purchaser for breach of warranty on the basis of agency or a contract
for the benefit of a third party. 163 However, these contractual mechanisms ultimately
have limited practical effect in assisting consumers who have suffered harm as a result
of a defective product against manufacturers. 164
On the other hand, a plaintiff who instituted a delictual claim 165 is bound to prove all of
the common law elements for delictual liability. In the context of defective consumer
161 Markesinis & Unberath The German Law of Torts 748.

162 D Hutchison & CJ Pretorius The Law of Contract in South Africa 2 ed (2012) 21-32. See also Van
Eeden Consumer Protection Law 73-87, 372; Loubser & Reid Product Liability 23-35.
163 Loubser & Reid Product Liability 24; M Dendy “Agency and Representation” in WA Joubert & JA
Faris LAWSA 1 3 ed (2014) para 175.

164 Loubser & Reid Product Liability (2012) 24; ADJ van Rensburg, JG Lotz & T van Rhijn “Contract” in
WA Joubert & JA Feris LAWSA 9 3 ed (2014) para 425.

165 Loubser & Reid Product Liability 24: an action based on the manufacturer’s pre-contractual
representations.
160
products, the elements of fault (in the form of negligence), causation 166 and fault 167
are particularly difficult to prove. In Wagener v Pharmacare Ltd; Cuttings v
Pharmacare Ltd (“Wagener”), 168 the SCA was requested to develop the common law
of delict by doing away with the requirement of fault. 169 However, the court refrained
to do so, stating that any reform of the law of delict in this context was better left to the
legislature. 170
The apparent lack of an effective remedy with which to compensate harm suffered by
a consumer may therefore be said to have been a convincing policy-based
consideration for the legislative development of this branch of the law, both in South
Africa and elsewhere. Of course, as stated above, a desire for an effective remedy
was the result of the risk of harm to which consumers were exposed by especially
modernised, technologically-advanced manufacturers and the accompanying risk of
potentially receiving no compensation should the harm materialise.
The legislative development of the delictual remedies in respect of harm caused by

defective consumer products occurred through the introduction of a strict liability
regime for producers, importers, distributors and retailers. The most convincing policy-
based justification for the legislature’s development of the law of delict may arguably
be found in the notion of enterprise liability. Consumers are exposed to risks inherent
to certain products from which manufacturers stand to make a profit. Therefore, the
costs of accidents should be imposed on the manufacturers, who, additionally, often
are best placed to take steps to avoid the risk of damage (by taking precautions at the
design and manufacturing stages of production) 171 or to minimise its effects (through
the adoption of insurance or through pricing of products). 172 This point has also been
illustrated in the landmark American decision Escola v Coca-Cola Bottling Co: 173
“Even if there is no negligence, however, public policy demands that responsibility be fixed
wherever it will most effectively reduce the hazards to life and health inherent in defective
products that reach the market. It is evident that the manufacturer can anticipate some hazards
166 See Loubser & Reid Product Liability 53-55 for the difficulties relating to proving causation in this
context.
167 See Loubser & Reid Product Liability 46-50 for the difficulties relating to proving fault in this context.
See also Wagener v Pharmacare Ltd; Cuttings v Pharmacare Ltd 2003 (4) SA 285.
168 2003 (4) SA 285 (SCA) para 10.
169 Paras 17, 27-30.
170 See below in paragraph 3.3.2.
171 Deakin et al Tort Law (2013) 590-591.
172 Loubser & Reid Product Liability 5; Stapleton Product Liability 162-184.
173 24 Cal. 2d 453, 462 (1944) (emphasis added).
161
and guard against the recurrence of others, as the public cannot. Those who suffer injury from
defective products are unprepared to meet its consequences. The cost of an injury and the loss
of time or health may be an overwhelming misfortune to the person injured, and a needless one,
for the risk of injury can be insured by the manufacturer and distributed among the public as a
cost of doing business. It is to the public interest to discourage the marketing of products having
defects that are a menace to the public. If such products nevertheless find their way into the
market it is to the public interest to place the responsibility for whatever injury they may cause
upon the manufacturer, who, even if he is not negligent in the manufacture of the product, is
responsible for its reaching the market. However intermittently such injuries may occur and
however haphazardly they may strike, the risk of their occurrence is a constant risk and a general
one. Against such a risk there should be general and constant protection and the manufacturer
is best situated to afford such protection.”
In conclusion, it may be argued that, as was the case with statutory intervention in the
area of motor vehicle accidents and workplace-related injuries and diseases, the most
prominent underlying consideration for the development of the fault-based common
law of delict in relation to harm suffered as a result of a defective product is the creation
of a risk of harm and the additional risk that the injured consumer may not find
compensation as a result of an insolvent manufacturer, evidentiary difficulties or
ineffective legal remedies. The introduction of strict liability by the legislature has been
justified by the notion of enterprise liability in the context of both occupational injuries
and diseases as well as defective consumer products. 174
3.2.1.5 Conclusion: the need to combat the risk of harm
At the advent of the previous century, the protection from the risk of potential harm
was still largely assumed to be a matter which people had to attend to themselves.
Upon the materialisation of such a risk, people were similarly presumed to take
responsibility for obtaining compensation for their harm by instituting legal action
against the wrongdoer. 175 In other words, those who suffered harm as a result of the
culpable wrongdoing of others were largely dependent on the remedies available in
the common law of delict. Generally, this meant that the victims of harm had to find
the time and funds to institute legal proceedings against a wrongdoer and provide
sufficient evidentiary proof that the wrongdoer’s culpable conduct was indeed the
cause of their harm.
174
See Stapleton Product Liability 20.
175
For a comparative perspective, see Hedley “Tort and Personal Injuries, 1850 to the Present” in Tort
Law and the Legislature 235.
162
However, over the course of the 20th century, a shift gradually occurred and the law of
delict was developed by the South African legislature. The shift originated in the
context of accidents that took place in the workplace, which may be said to have been
characterised by an initial reluctance to regulate the behaviour of employers, 176 and
the court’s original individualistic approach which saw employers being held liable for
workplace accidents only in the event that the victim could prove personal fault on the
part of the employer. 177 The development of the law of delict, as driven by the South
African legislature, ultimately led to a growing demand for workplace safety, legal
certainty and, most importantly, a cheaper and quicker way of compensating
employees who suffered harm when an employment-related risk of harm materialised.
Although there were other compelling considerations, it may be argued that, ultimately,
the employees’ exposure to an ever-increasing risk of harm and the accompanying
risk of not being able to receive compensation provided the predominant consideration
for the legislature’s decision to intervene.
Similarly, as a result of the increase in the number of motor vehicles during the course
of the 20th century, the number and frequency of motor vehicle accidents grew
significantly. Perhaps more than occupational accidents, this upsurge exposed road
users to a substantial risk of harm and an accompanying risk of receiving no
compensation in the event that the risk should materialise. Again, the legislature
intervened by developing the law of delict. This was initially done by retaining the motor
vehicle accident victim’s delictual remedy against a wrongdoer while also introducing
the notion of compulsory third party insurance. 178 In doing so, the legislature shifted
the responsibility to compensate the motor vehicle accident victim to a source other
than the wrongdoer. The legislature’s desire to address the risk of receiving no
compensation also saw it further develop the law relating to motor vehicle accidents
by replacing the system of compulsory third party insurance with a centralised
compensation fund, financed through fuel levies.
176 Select Committee Report of the Select Committee on Compensation to Workmen 64-65. See also
Hedley “Tort and Personal Injuries, 1850 to the Present” in Tort Law and the Legislature 236.
177 See further Hedley “Tort and Personal Injuries, 1850 to the Present” in Tort Law and the Legislature
237.
178 Hedley “Tort and Personal Injuries, 1850 to the Present” in Tort Law and the Legislature 243: “Third-
party insurance was first offered to carriage drivers in 1875, and to motorists in 1896”. Furthermore,
compulsory insurance was introduced by the Road Traffic (Compensation for Accidents) Bill in 1934.
163
Recently, the legislature abolished the motor vehicle accident victim’s right to a
common-law delictual remedy in respect of the harm not covered by the RAF Act.
Although such a legislative development was held to be constitutionally valid, it
arguably undermines the initial legislative project of ensuring the compensation of the
victim’s harm in the case of a risk eventuating, and is furthermore indicative of the
legislature’s attempt to offer protection also to the wrongdoer. The legislature has
attempted to justify these amendments as constituting part of greater reform towards
a comprehensive social security for all individuals.
The statutory development of the law of delict by the introduction of a strict liability
regime in respect of producers, importers, distributors or retailers was also, to a great
extent, driven by the dramatic increase in the production of consumer goods which
brought about an ever-increasing risk of harm associated with a modern, mechanised
society that produces potentially hazardous products.
Although the utility of motor vehicle transport, increased labour forces and a growing
manufacturing sector is clearly visible, the benefit is accompanied by an amplified risk
of harm. The South African legal system produced a solution in which these activities
were permitted, but only on condition that the most appropriate enterprise were
saddled with the cost of the risks they produced. 179
The previous chapter highlighted the increasing expansion of the state’s delictual
liability for harm that arises from crime. The development is disquieting also from a
crime prevention perspective because, with more of available tax-payer funds being
spent on litigation and the payment of full compensation to crime victims, less of the
funds are directed to promoting safety and preventing crime. In turn, this creates
greater possibilities for the further extension of the state’s delictual liability. In other
words, the current judicial trend indirectly contributes to the increased risk of crime by
diminishing available resources intended for crime prevention. At the same time, the
recent development responds to the risk of receiving no or limited compensation in the
event of suffering from crime – but only in respect of a limited number of crime victims
who are able to institute litigious proceedings against the state. Therefore, the ongoing
tendency to expand the state’s delictual liability indirectly contributes to the increased
179 See also Markesinis & Unberath The German Law of Torts 716.
164
likelihood of being a victim of crime while it provides a compensatory solution only to

those who are capable of proving liability in court.
Viewed against the background of statutory development, which highlights the

potentially more effective victim compensation strategy that exists through the
legislative reform of the law of delict, the current judicial development pertaining to
crime victim compensation appears unattractive.
3.2.2 The role of the Constitution and the need to promote the constitutional
right to social security
In this part of the chapter, attention will be given to the role which the Constitution of
the Republic of South Africa,1996 (the “Constitution”) has played in justifying the
statutory development of the law of delict. As discussed in greater detail below, the
Constitution has been particularly important insofar as it has promoted the right to
social security through the legislative reform of the law of delict.
3.2.2.2 Salient provisions of the Constitution
Before attention is given to the promotion of the right to social security, it would be
appropriate to summarise the salient provisions of the Constitution.
The Constitution is the supreme law of the country, 180 central to the country’s legal
system and it determines the validity of all law, including the law of delict. 181 The Bill
of Rights applies to all law and binds the legislature, the executive, the judiciary and
all organs of state. 182 It also applies to the conduct of natural persons and juristic
persons, when appropriate. 183 The Constitution also enjoins every court, tribunal or
forum to promote the spirit, purport and objects of the Bill of Rights when interpreting

165
any legislation and when developing the common law. 184 Section 7(2) of the
Constitution imposes upon the state a positive duty to protect and promote the rights
contained in the Bill of Rights. Importantly, section 27(1)(c) 185 refers to the right to
social security and section 27(2) 186 imposes upon the state a mandatory duty to take
reasonable legislative and other measures, within its available resources, to achieve
the progressive realisation of each of these rights.
In the following paragraphs, the statutory development of the law of delict will be
examined to establish the role which the constitutional right to social security has
fulfilled as a legal consideration that justifies the legislative intervention in the law of
delict. Particular attention will be given to the development of the area of the law that
relates to motor vehicle accidents and occupational injuries and diseases.
3.2.2.3 The constitutional right to social security
Academic literature reflects the difficulty in providing an adequate definition for social
security that may be applied consistently. 187 South African legislation, international
legislation and academics provide different definitions of the concept. 188 Some
sources concentrate on an enumerated list of social risks to which a legislative
response is required, whereas others focus on the nature of the state’s involvement in
addressing the risk or the aims that are to be served by providing social security. 189 A
detailed analysis regarding the nature of social security falls outside the scope of this
dissertation and the remainder of this section will describe its meaning for the purpose
of this dissertation.
First, it would be appropriate to distinguish the promotion of social security as a policy

consideration from the need to combat risk. 190 The promotion of social security is not

185 This section states that everyone has the right to access to “social security, including, if they are
unable to support themselves and their dependants, appropriate social assistance.”
186 This section states that the “state must take reasonable legislative and other measures, within its
available resources, to achieve the progressive realisation of each of these rights.”

187 Olivier “Social Security: Framework” in LAWSA 13(2) (2012) para 15.
188 Olivier “Social Security: Framework” in LAWSA 13(2) (2012) para 15.
189 Olivier “Social Security: Framework” in LAWSA 13(2) (2012) para 20 provides a list of the risks
addressed. See also MP Olivier, MC Okpaluba, N Smit & M Thompson (eds) Social Security Law:
General Principles (1999) 9-17.
190 See paragraph 3.2.1 above.
166
only focused on addressing the risk of a specific type of harm and the accompanying
risk of potentially receiving no or limited compensation. Legislation that is aimed at
promoting social security typically casts the net wider and attempts to support
individuals with no or low income, provide adequate standard of living and puts in place
a social safety net against destitution. 191 As alluded to in its policy paper regarding the
proposed RABS, the right to social security system does not focus only at
compensating harm that arise within a specific context. 192
Instead, social security arrangements consist of a range of collective and individual

social, fiscal, occupational and welfare measures of private, public and mixed origin
aimed at providing social cover to members of society. 193 In other words, the
consideration discussed in this part of the chapter is not the same as the one
discussed in paragraph 3.2.1 above. While the latter concentrated solely on the issue
of compensation of the victim’s harm (once a particular risk has materialised), the
promotion of the constitutional right to social security has a broader scope which
embraces other non-compensatory objectives, including empowering the historically
disadvantaged, 194 promoting fundamental human rights (particularly human
dignity), 195 addressing past injuries, 196 and seeking to provide an adequate standard
of life to all individuals. 197
In the following part of the chapter, attention will be given to instances of legislative
development of the law of delict that were justified in part by the need to advance the
constitutional right to social security.
191 7-8.
192 Minister of Transport Policy Paper 5-6.
193 5-6.
194 In doing so, the legislation addresses poverty and social exclusion, which may be regarded as a key
to social protection. It also enhances other constitutional values and principles, such as equality, non-
sexism and non-racism. See Olivier, Smit & Kalula Social Security 35.
195 See Olivier, Smit & Kalula Social Security 36: “There is some Constitutional Court authority for the
view that social security-related rights are aimed at more than simply restoring material disadvantage
[...] In Grootboom, the court emphasised the strong link between human dignity and the giving effect to
access of adequate housing.”
196 See Olivier, Smit & Kalula Social Security 53: “Fundamental reform of South Africa’s social security
system aims to redress past injustices, particularly the country’s legacy of poverty and equality.”
197 See Minister of Transport Policy Paper 5-6.
167
3.2.2.4 Legislative intervention that gives effect to the constitutional right to

social security
3.2.2.4.1 Legislative intervention in the area of motor vehicle accidents that

gives effect to the constitutional right to social security
Referring to the statutory motor vehicle accident compensation scheme established to

cover the risks to which road users are exposed, the CC held that it “seems plain that
the scheme arose out of the social responsibility of the State. In effect, it was, and
indeed still remains, part of the social security net for all road users and their
dependants.”198
During the parliamentary debate concerning the introduction of the 1942 Act and
accompanying compulsory third party insurance scheme, it was stressed that,
regardless of the accompanying cost which a compulsory third party insurance system
may bring, members of society should realise that the Act “aims at the protection of
those who cannot look after themselves.” 199 In particular, the “principle of security” 200
was emphasised to ensure protection of the road users’ interests and safety. Those in
favour of the legislation stressed the impact of injury and disability upon road users: 201
“Those people who were injured are suffering day in and day out in their work; they are unable
to look after their families, and because those families have to endure great hardships while the
children are young, they cannot enjoy their legitimate share in life. Those are the people we
should primarily think of. They must be looked after. The people who are injured must first of all
be nursed back to health, which means an enormous amount of work for the hospitals and for
the nursing services, and also for the medical services of this country.”
Because of its adherence to fault-based liability, the RAF Act, however, has been
criticised as a failed system that is “unreasonable, inequitable, unaffordable and
unsustainable.” 202 As discussed elsewhere in this chapter, 203 the requirement for fault
has a significantly detrimental impact on the successful pursuit of compensation by a
motor vehicle accident victim. In turn, it is argued, a significant amount of those victims
are left uncompensated and without the ability to earn income. To address this
concern, and to provide greater effect to the right to social security, the legislature has
198 2011 (1) SA 400 (CC) para 17.

200 109.
201 109.
202 Minister of Transport Policy Paper 13.
203 See paragraph 3.2.3.3.
168
proposed the RABS. In Law Society of South Africa v Minister for Transport, 204 the
purpose of the proposed scheme was described as follows:
“[T]he ultimate vision is that the new system of compensation for road accident victims must be
integrated into a comprehensive social security system that offers life, disability and health
insurance cover for all accidents and diseases. [The Minister] acknowledges that a fault-based
common-law system of compensation for road accident victims would be at odds with a
comprehensive social security model. The intention is therefore to replace the common-law
system of compensation with a set of limited no-fault benefits which would form part of a broader
social security net as public financial support for people who are poor, have a disability or are
vulnerable. […The] new scheme is a first step to greater reform.”
Furthermore, the policy paper for the RABS makes it clear that the proposed no-fault
based compensatory scheme must be understood against the social and economic
reality of South African society, which is characterised by great disproportions in
income and lifestyle. 205 The RABS is cognisant of historical disadvantages prevalent
in the South African society and is a legislative attempt to develop the existing common
law of delict as it relates to compensation of motor vehicle accidents as well as an
attempt to contribute to the state’s broader social security reform process. 206 By
removing the requirement of fault, the legislature makes provision that social security
benefits will be made available to a wider group of road accident victims, 207 in the
process seeking to provide an adequate standard of life to all citizens. In doing so, the
legislature strives to promote the principle of social inclusion as well as the notion that
the “risk of misfortune should become the comprehensive and collective responsibility
of society as a whole.” 208
3.2.2.4.2 Legislative intervention in the area of occupational accidents and

injuries that gives effect to the constitutional right to social security
Occupational injury and disease schemes are generally considered to be the oldest
form of social security coverage in the world. 209 It is also regarded as the most
widespread system of social security, and if the “various branches of social security
from different countries are examined it is clear that almost every country […] has an
204 2011 (1) SA 400 (CC) paras 45-46.

205 Minister of Transport Policy Paper 6-7.
206 6-7.
207 6-7.
208 7.
209 International Labour Office Strengthening the Role of Employment Injury Schemes to Help Prevent
Occupational Accidents and Diseases (2013).

169
insurance scheme to cover these risks.” 210 Generally, these schemes give effect to
the right to social security by promoting workplace safety and providing compensation,
medical care, vocational rehabilitation, and further benefits to employees as well as
survivors’ benefits for families of victims of occupational accidents. 211
As noted above, the COIDA introduced significant changes in respect of the protection
of employees’ rights and, although it did not intend to provide a kind of general health
cover for every accident or disease which an employee may suffer from, it may
nevertheless be regarded as social security legislation, aimed at the provision of a
more equitable compensation dispensation in regard to injuries suffered and diseases
contracted by employees. 212 Specifically, where earlier legislation was based on the
principle of individual employer liability as covered by private insurance, the
subsequent legislation introduced the principle of no-fault based liability and limited
benefits covered by a public scheme. 213 The introduction of such a scheme, which
does not require an employee to prove fault on the part of the employer, weakens the
likelihood of lengthy and costly legal disputes and provides a more streamlined
administrative process for the effective compensation of injured employees. As such,
this piece of “social legislation” 214 promotes the social and economic welfare of
employees.
Therefore, taking into account that it sought to promote workplace safety, rehabilitate
injured or diseased employees and provide compensation to those who have fallen
victim to accidents that have occurred during the course and scope of employment, it
may be said that the legislative development of a no-fault based compensation
scheme for occupational injuries and diseases in South Africa is an example of the
promotion of the constitutional right to social security. 215
210 Olivier et al Social Security Law 312.

211 International Labour Office Strengthening the Role of Employment Injury Schemes.
212 For example, the exclusion of higher-income earners was removed.
213 Olivier “Social Security: Framework” in LAWSA 13(2) para 9.
214 In Molefe v Compensation Commissioner and Another (25579/05) [2007] ZAGPHC 365 para 5, Seriti
J found that the “Compensation for Occupational Injuries and Diseases Act […] is a social legislation
and according to section 39(2) of the Constitution, it must be interpreted in such a manner that the said
interpretation promotes the spirit, purport and objects of the social security right as enshrined in section
27 (l)(c) of the Constitution.”
215 P Myburgh, N Smit & D van der Nest “Social security aspects of accident compensation: COIDA and
RAF as examples” Law, Democracy and Development (2011) 43 43.

170
3.2.2.5 Conclusion
Social security arrangements consist of a range of collective and individual social,

fiscal, occupational and welfare measures of private, public and mixed origin aimed at
providing social cover to members of society and at combating certain risks.
The statutory compensation schemes that provide compensation for harm arising from
motor vehicle accidents and occupational injuries and diseases constitute a part of the
broader social security project in South Africa. These schemes afford a variety of
victims the possibility to obtain compensation in a relatively affordable and quick
manner and without having to pursue a more costly, time-consuming litigious route. In
doing so, they protect people from misfortune, distress and the significant risks to life
caused by unemployment, illness, injury, disability and death of a breadwinner, and
thereby give effect to the constitutional right to social security.
The Constitution has been particularly important in developing the law of delict by
promoting the constitutional right to social security. It may be argued that the COIDA
and the RAF Act are aimed at giving effect to this constitutional imperative insofar as
they afford victims of motor vehicle accidents, workplace injuries and diseases the
fullest possible protection of their legal interests. 216 Furthermore, the proposed no-fault
based compensatory model sought to be introduced under the RABS has pertinently
been justified on the basis that it seeks to give “effect to the [right to] reasonable
access to social security and health care.”217
The South African legislature’s development of the law of delict pertaining to the
compensation of accident victims is therefore justified insofar as it addresses particular
and pervasive social risks to which all members of society are exposed and responds
to the broader constitutional project that includes empowering the historically
disadvantaged, 218 promoting fundamental human rights (particularly human
216 MP Olivier, JF Khoza, L Jansen van Rensburg & E Klinck “Constitutional Issues” in MP Oliver, N
Smit & E Kalula (eds) Social Security: A Legal Analysis (2003) 49-119; Van Eeden Consumer Protection
Law 92; Law Society of South Africa v Minister for Transport and Another 2011 (1) SA 400 (CC).
217 Law Society of South Africa v Minister for Transport 2011 (1) SA 400 (CC).
218 See footnote 193 above.
171
dignity), 219 addressing past injuries 220 and seeking to provide an adequate standard
of life to all individuals. 221
3.2.3 Evidentiary problems with applying the common-law requirement of fault
Although the law of delict recognises exceptional circumstances where it is not

required, a plaintiff must, generally, prove fault. This means that, first, the victim is
required to prove that the wrongdoer had the capacity to be at fault. 222 To do so, a
plaintiff must prove that the defendant had the mental ability to distinguish between
right and wrong and to act in accordance with that distinction. 223 If the wrongdoer is
shown to be accountable, the plaintiff must prove that the wrongdoer acted either
intentionally or negligently. With regard to the former, it must be proven that the
defendant had the direction of will to cause him harm and that the wrongdoer was
conscious of the wrongfulness of his act. 224 In respect of the latter, the plaintiff must
prove that the wrongdoer’s conduct failed to measure up to the standard of the
objective reasonable person. 225
3.2.3.2 Reasons for fault-based liability
Despite strong arguments that may be raised in support of the departure from fault-
based liability, the South African courts have reiterated the requirement for proving
fault when establishing delictual liability. 226 There are convincing reasons in favour of
such a general position, and these may briefly be summarised as follows. First, the
fault principle embodies and gives effect to fundamental ideas about personal
responsibility: a person who injures another through his culpable conduct ought to be

222 Neethling & Potgieter Law of Delict 131; Loubser & Midgley (eds) The Law of Delict 104.
223 Eskom Holdings Ltd v Hendricks 2005 (5) SA 503 (SCA) 511.
224 Le Roux v Dey; Freedom of Expression Institute Amici Curiae 2011 (3) SA 274 (CC).
225 Sea Harvest Corporation (Pty) Ltd v Duncan Dock Cold Storage (Pty) Ltd 2000 (1) SA 827 (SCA);
Kruger v Coetzee 1966 (2) SA 428 (A); Loureiro and Others v Imvula Quality Protection (Pty) Ltd [2014]
ZACC 4.
226 Oppelt v Department of Health, Western Cape 2016 (1) SA 325 (CC); Jacobs and Another v Transnet
Ltd t/a Metrorail and Another 2015 (1) SA 139 (SCA); H v Fetal Assessment Centre 2015 (2) SA 193
(CC).
172
held responsible for the harm caused by his conduct by being required to compensate
the injured person. 227 This view, namely that the wrongdoer is called on to correct the
harm suffered by the victim precisely because he was the one who culpably and
wrongfully caused it, is in line with the corrective justice rationale for the compensatory
function of the law of delict. 228 The insistence on fault-based liability therefore echoes
the moral notion of dessert, i.e. the idea that only those who have caused another
person’s harm by acting in a blameworthy manner, should be made to pay
compensation.
To explain and justify the role of the fault requirement, emphasis is sometimes placed
on its relationship with deterrence, a function which the law of delict may be said to
fulfil. 229 Doing away with the requirement of fault would mean that the reasonableness
of someone’s conduct would be largely irrelevant when establishing delictual liability,
potentially impacting on the role that deterrence may play as well as the motivation to
act reasonably, particularly when doing so may prove to be a costly and time-
consuming affair.
Law-and-economics scholars have argued that the primary goal of fault-based liability
is not that it encourages the avoidance of all harm, regardless of costs, but, rather,
that it seeks to achieve an optimal balance between the number of injuries and the
social benefits of the activities which produce them. 230
The appraisal of the fault requirement for delictual and tortious liability, generally, has
evoked a vast amount of academic writing. 231 Further analysis of the philosophical,
legal and economic arguments in respect of the fault requirement falls outside the
scope of this dissertation. Instead, the focus will be placed on specific considerations
regarding the fault requirement that have motivated the South African legislature to
develop the law of delict.

228
Weinrib (2002) The University of Toronto Law Journal 349-356; J Gardner “What is Tort Law For?
Part 1. The Place of Corrective Justice‟ (2011) 30 Law and Philosophy 1-14; Coleman “The Practice of
Corrective Justice” in Philosophical Foundations of Tort Law; Fagan “The right to personal security” in
Private Law and Human Rights: Bringing Rights Home in Scotland and South Africa130-155.
230 C Brown “Deterrence in Tort and No-Fault: The New Zealand Experience” (1985) California Law
Review 73(3) 976 976-977.

231 See in particular Cane Atiyah’s Accidents 174-199.
173
3.2.3.3 Legislative intervention: doing away with the fault requirement
Notwithstanding the above, and despite the fact that fault is generally required for
delictual liability, the South African legislature has nevertheless elected to develop the
law of delict by abolishing the fault requirement in specific contexts. In this part of the
chapter, attention will be given to the reasons that have justified the legislative
development in these instances.
3.2.3.3.1 The evidentiary difficulty in proving fault in the context of motor

vehicle accidents
In its report, the RAFC, tasked with conducting an inquiry into and making
recommendations regarding a “reasonable, equitable, affordable and sustainable
system for the payment by the Road Accident Fund of compensation or benefits in the
event of the injury or death of persons in road accidents in the Republic”, 232 noted that
it “is increasingly felt that fault cannot really be determined accurately and there is also
a growing social concern for accident victims regardless of the role they played in
causing the accident.”233
In the RABS policy paper dealing with the potential legislative intervention in the law
of delict in the context of motor vehicle accidents, the Minister states that this
requirement may lead to a delay in providing victim compensation, because it is often
necessary to resort to litigation to obtain clarity on the question of fault. 234 This, in turn,
results in extensive legal costs for both the accident victim and the RAF. 235 During the
delay, victims have to pay for medical and other expenses themselves and, if they are
disabled, they are not in a position to pursue gainful employment, which means that
their families could also suffer. 236 In a developing country, such as South Africa, “a
significant proportion of road users have not had the financial means to pay for
appropriate healthcare and rehabilitation themselves while waiting for the legal

233 119.
234 Department of Transport Policy Paper for the RABS 13.
235 1-7.
236 1-7.
174
process to be finalised.” 237 For these reasons, the fault-based system of liability under
the RAF Act has been described as “unreasonable, inequitable, unaffordable and
unsustainable.” 238
In response to these difficulties, the RABS has been proposed. The preamble of the
proposed legislation for motor vehicle accidents therefore states that “there is a need
to expand and facilitate access to benefits by providing them on a no-fault basis”. The
suggested no-fault model under the RABS will potentially ease the “administrative load
[…] and speed up service delivery. Long delays in the settlement of claims will be
eliminated by the fact that possible disputes over the fault requirement and which
frequently required legal intervention will be removed and by the resulting streamlined
administrative process.” 239
The introduction of a no-fault liability model under the proposed RABS provides an
example of where the evidentiary difficulties in proving fault (in the form of negligence)
has been used as a justifiable policy reason for legislative reform of the law of delict. 240
It is envisaged that the proposed no-fault model will ease the administrative load
regarding the process of statutory claims, increase the speed with which those claims
are processed and prevent lengthy, costly legal disputes concerning the existence of
negligence.
3.2.3.3.2 The evidentiary difficulty in proving fault in the context of occupational

injuries and diseases
The introduction of a strict liability regime in the context of occupational injuries and
diseases was similarly motivated by the desire to assist the victims of occupational
injuries and diseases so that they are not required to prove fault. 241 Upon tabling the
COIDA to the extended public committee in parliament, the Minister of Manpower aptly
remarked: 242
“Under common law an injured employee or the dependents of a deceased employee may get
compensation from his employer if it can be proved that the injury or death was due to the
237 7.
238 6.
239 Minister of Transport Policy Paper 5.
240 See Law Society of South Africa v Minister for Transport 2011 (1) SA 400 (CC) para 45; Minister of
Transport Policy Paper (2011) 5.

241 Markesinis & Unberath The German Law of Torts 727-731.
242 Proceedings of the Extended Public Committee Debates of Parliament 1993-1994 (1994) 12305.
175
negligence of the employer, but in a modern industrial set-up in which, for example, a number of
employees jointly use sophisticated machinery, it may be virtually impossible for an injured
employee to prove negligence.”
With the introduction of the COIDA and by doing away with proving fault within this
context, the employee is therefore able to obtain compensation much easier and
quicker from a solvent entity. 243 It may therefore be argued that the compensation fund
more effectively compensates victims than a delict/tort system that requires proof of
fault. 244
3.2.3.3.3 The evidentiary difficulty in proving fault in the context of defective

consumer products
Proving fault, especially negligence, is difficult and places a burden on the plaintiff that
is often hard or impossible to discharge. 245 This evidentiary difficulty has been a major
policy consideration in favour of statutory intervention in the field of product liability,
where the consumer is usually unable to analyse or scrutinise the products for
safety. 246 In Wagener, the SCA was requested to develop the rules of the common
law of delict so that it was no longer required for victims of defective products to prove
that the manufacturer had been culpable (in this case, negligent) in manufacturing the
product in question. Although the court ultimately opted to leave the development of
this branch of the law to the legislature, it took cognisance of the difficulty in proving
fault: 247
“A plaintiff has no knowledge of, or access to the manufacturing process, either to determine its
workings generally or, more particularly, to establish negligence in relation to the making of the
item or substance which has apparently caused the injury complained of. And, contrary to what
some writers suggest, it was urged that it is insufficient to overcome the problem that the fact of
the injury, consequent upon use of the product as prescribed or directed, brings the
maxim res ipsa loquitur into play and casts on the defendant a duty to lead evidence or risk
having judgment given against it. The submission is that resort to the maxim is but a hypocritical
ruse to justify (unwarranted) adherence to the fault requirement.”
243 For a German perspective on this point, see Markesinis & Unberath The German Law of Torts 727.
244 See also Stapleton Disease and the Compensation Debate (1986) 12, who writes about English
legislation that provides an occupational injuries scheme: “The principal advantage the scheme has
over tort […] is that fault in an identifiable wrongdoer need not be shown, nor, in most cases, need the
claimant affirmatively prove medical causation, as he or she can take advantages of presumptions to
this effect.”
246 4.
247 2003 (4) SA 285 (SCA) para 10.
176
A by-product of a strict liability regime in this context is the fact that it assist in
promoting consumer safety and deterring the manufacturing of dangerous products.
In the product liability context, the abolition of the fault requirement appears to perform
the instrumental function of creating safety incentives. 248 Imposing strict liability on
manufacturers for harm caused by manufacturing defects encourages greater
investment in product safety than does a regime of fault-based liability under which
sellers may escape their appropriate share of responsibility. 249 In its 1985 directive,
the European Union also emphasised the fact that the imposition of a strict liability
regime relating to defective products is the “sole means of adequately solving the
problem, peculiar to our age of increasing technicality, of a fair apportionment of the
risks inherent in modern technological production”. 250
These considerations have prompted the South African legislature to shift the harm
suffered by consumers as a result of defective products onto the risk creator which
directly stands to benefit from the risk-taking. 251 The introduction by the South African
legislature of the strict liability regime for defective products under section 61(1) of the
CPA assists consumers practically in protecting their legal interests in cases involving
complex products and where it would otherwise have been difficult or impossible to
attain expert evidence to prove the defendant’s fault. 252
3.2.3.4 Conclusion
The argument against fault (especially in the form of negligence) has been successful
in both South Africa and foreign jurisdictions in spurring legislative development of the
law of delict/tort law in a variety of contexts, notably harm resulting from defective
consumer products, workplace-related injuries and diseases and motor vehicle
accidents. 253 It is submitted that the requirement to prove fault, especially negligence,
in some instances may place a burden on victims of harm that is very difficult, or

249 5.
250 5.
251 See also Stapleton Disease and the Compensation Debate 92.
253 See also S Sugarman “Serious Tort Law Reform” (1987) Vol. 24 San Diego Law Review 795 804-
805.
177
potentially impossible to satisfy, thereby potentially leaving them without

compensation.
3.3 General legal and public policy considerations that have justified the
statutory reform of the South African law of delict
The previous three sections concentrated on specific considerations that have justified
the statutory development of the law of delict: the need to combat the risk of harm, the
need to promote the constitutional right to social security and evidentiary problems
relating to the application of the common-law fault requirement. In the following three
sections, the focus will shift to three general considerations that may be said to have
supported the legislative reform within the highlighted areas of the law of delict. These
include the general dissatisfaction with the nature of the civil procedural system in
claiming damages, the preference for statutory reform (as opposed to judicial
development) and the need to avoid arbitrary outcomes.
3.3.1 The nature of the civil litigation process: under-compensation and high
transaction costs
From a comparative perspective, the common law of tort has been criticised as being
ineffective in its principal aim of compensating harm resulting from especially personal
injury, disease and death. 254 Dissatisfaction with the operation of the tort system
received widespread academic attention during the 1960s and 1970s. 255 During the
same time, mass tort litigation drew public attention to the clumsy, time-consuming
and costly nature of obtaining compensation by instituting civil proceedings. 256
The vigorous academic and public debates in the UK about the shortcomings of the
tort system as a compensation mechanism was further buoyed by the enactment of
the Accident Compensation Act in New Zealand in 1972. 257 The Act abolished the tort
system insofar as the compensation for harm resulting from personal injuries is
254 Cane Atiyah’s Accidents, Compensation and the Law 7 ed (2006) 461-499; Deakin et al Tort Law
51-59.
255 T Ison The Forensic Lottery (1967); DW Elliot and H Street Road Accidents (1968); P Atiyah
Accidents, Compensation and the Law 1 ed (1970).

257 This Act has since been replaced by the Accident Compensation Act of 2001.
178
concerned, and replaced it with a general compensation scheme which provided

compensation for harm resulting from all accidents and some diseases. 258 It was
argued that such a legislative development would, inter alia, alleviate the concerns
relating to the high transaction costs of the civil litigation system. Within this framework
the UK government established the Royal Commission on Civil Liability and
Compensation for Personal Injury to investigate the need for reform of the common
law of tort (“Pearson Report”). 259
The Pearson Report revealed that out of the total number of some 3 million persons
estimated to have suffered from personal injury each year, only approximately 1,7
million received financial assistance from any source, with some of the victims
receiving compensation from more than one source. 260 Significantly, it was found
that: 261
“[out of the] estimated 3 million persons suffering some injury in each year, only some 125,000
(approximately 7 per cent) received any compensation in the form of tort damages. However, the
total value of the damages paid to this 7 per cent was almost half of the total value of the social
security payments made to the 1.5 million recipients of those payments. When account is taken
of the administrative costs of the differing compensation systems, the position is even more
striking, because the tort system is much more expensive to administer […] of the total cost of
compensation paid (on average in each of the years 1971-1976) some £1 billion, the tort system
accounted for no less than £377 million. Thus, 7 per cent of the accident victims accounted for
perhaps 37 per cent of the total cost (payments plus administration) of the compensation paid
out (making some allowance for the estimated administrative costs).”
The Pearson Report indicated the high costs associated with the tort system which, in
relation to other sources of compensation, seemed “less significant if its importance is
assessed not in relation to accident victims alone, but in relation to the tentimes larger
group of people who are disabled from all causes, these predominantly being illness
and disease.” 262
Although there are no up-to-date statistics to put alongside those provided in the
Pearson Commission’s report, it has been argued that “there is little reason to think
that the basic picture is significantly different now”. 263 In addition, it has been stated

259 The Pearson Report was published in 1978.
260 19-21.
261 19-21.
262 R Lewis “Recovery of State Benefits from Tort Damages: Legislating For and Against the Welfare
State” in Arvind & Steele (eds) Tort Law and the Legislature (2013) 288.
263 Cane Atiyah’s Accidents 19-21.
179
that, although “[f]igures for South Africa are not known, they are likely to show similar
trends.”264
In the South African context, it may be argued that, similar to the position in England 265
and elsewhere, 266 civil litigation is expensive 267 and only a limited number of plaintiffs
can afford the accompanying legal transaction costs, 268 thereby restricting the right of
general access to justice. 269 Legal costs and fees in South Africa are substantial,
leading some to argue that “the major barrier to access to justice in South Africa
remains the high cost of legal services.” 270 It is therefore unsurprising that in EFF v
Speaker of the National Assembly; DA v Speaker of the National Assembly, 271
Mogoeng CJ recently emphasised the fact that “[l]itigation is prohibitively expensive
and therefore not an easily exercisable constitutional option for an average citizen”.
264 MM Loubser & JR Midgley (eds) The Law of Delict in South Africa 1 ed (2010) 9.
265 Lord Justice Jackson was appointed to carry out a fundamental review of the costs in civil litigation
in England and Wales. He published his final report in 2010, in which he found that the costs relating to
civil litigation (especially in respect of personal injuries) are excessive and has recommended
substantial changes in this regard. See Lord Justice Jackson Report: Review of Civil Litigation Costs
(2010) 14-18; Lord Justice Jackson “Reform of the Costs Regime” (2011) Advocate 37 37-42. In their
comparative study, analysing data from Australia, Austria, Belgium, Bulgaria, Canada, China, Czech
Republic, Denmark, England and Wales, Estonia, Finland, France, Germany, Greece, Hong Kong,
Hungary, Ireland, Italy, Japan, Latvia, Lithuania, the Netherlands, Norway, Poland, Portugal, Romania,
Russia, Scotland, Singapore, Spain, Sweden, Switzerland, Taiwan, the USA, Hodges, Vogenauer and
Tulibacka note that, generally speaking, litigation costs are expensive and time-consuming and
encourages further reform so as to improve access to justice: C Hodges, S Vogenauer & M Tulibacka
“Costs and Funding in Civil Litigation: A Comparative Study” (2009) University of Oxford Legal Research
Paper Series (55/2009) 3-9.
266 Hodges et al University of Oxford Legal Research Paper Series 3-9; Sugarman (1987) San Diego
Law Review (1987) 795: Tort law is “an intolerably expensive and unfair system of compensating
victims.”
267 See M Wallis “Reform of the Costs Regime – A South African Perspective” (2011) Advocate 33 33-
37; J Klaaren “The Cost of Justice” (2014) Briefing Paper for Public Positions Theme Event, 24 March
2014 WiSER, History Workshop & Wits Political Studies Department 1 1-6.
268 In other words, costs relating to the investigation of claims and the overall litigious process. See
Wallis Advocate 33-37; Klaaren Briefing Paper for Public Positions Theme Event 1-6. For a comparative
perspective see also Deakin et al Tort Law 53; Hodges et al University of Oxford Legal Research Paper
Series 3-9. See also Sugarman San Diego Law Review 798: “The money available for compensation
is paid into insurance companies as liability insurance premiums finds its way into the pockets of victims.
The rest is ground up in lawyers' fees and the associated costs that litigation generates. The money
also is consumed in the marketing, general overhead and claims administration costs of the insurers,
as well as their profits in years when they make profits. Furthermore, there are public costs to the judicial
system that the tort system imposes, both financial and through delay in the handling of other cases.”
269 See SALRC A Compensation fund for victims of crime 236. See Wallis (2011) Advocate 33-37;
Klaaren Briefing Paper for Public Positions Theme Event 1-6; Cane Atiyah’s Accidents 461-499; Cane
The Anatomy of Tort Law 231-237; S Sugarman “Doing Away with Tort Law” (1985) 73 California Law
Review. 555 558-622.
270 AfriMAP and the Open Society Foundation for South Africa South Africa: Justice Sector and the Rule
of Law (2005) 2, 108.

271 2016 (5) BCLR 618 (CC) para 52.
180
To illustrate, in 2005 the average South African household would have had to use a
week’s income to afford a one-hour consultation with an average attorney. 272 More
recently, in 2013, it was recorded that “clients with a monthly income of R600 […] are
frequently charged fees in the region of R1,500 […] just for an initial consultation.” 273
In accordance with the Rules Board for Courts of Law Act 107 of 1985, a 15-minute
consultation may cost anything between R144,50 and R235,50 while the cost of
drafting one page of a legal document may be charged at R50. 274 It also restricts
access to justice for the poor, especially civil justice which is largely not available from
Legal Aid South Africa. 275 These fees restrict access to justice across the board for
the not-so-poor, for instance persons in a household earning over R6000 a month and
thus not qualifying for Legal Aid. 276
There are additional factors that may contribute towards the high cost of instituting a
civil claim in a South African court. There are approximately 26,000 legal practitioners
in South Africa, serving at least 53 million people. 277 However, around 2,500 of these
practitioners are advocates who rarely have direct interaction with clients, especially
poor ones. Furthermore, the vast majority of these practitioners are situated in the
urban areas, with relatively few practising in small towns or rural areas which means
that “the cost and distance required to physically access lawyers makes pursuing
litigation an overwhelmingly impractical option.” 278
Although the number of legal practitioners continues to grow, it has not led to greater
competition, lower fees, more affordable legal assistance and greater access to
justice. 279 In addition, as noted above, the civil litigation process is very time-
consuming, resulting in many plaintiffs electing not to institute their claims at all. 280 As
272 Klaaren Briefing Paper for Public Positions Theme Event 2.

273 J Dugard & K Drage, “To Whom Do The People Take Their Issues?” Justice and Development
Working Paper Series (2013) 2.
274 See also D Holness “Recent Developments in the Provision of Pro Bono Legal Services by Attorneys
in South Africa” (2013) Potchefstroom Electronic Law Journal 16(4) 129 129-130.
275 Legal Aid “Who Qualifies for Legal Aid?” available at <http://www.legal-aid.co.za/?p=956> (accessed
on 24 March 2016); Klaaren Briefing Paper for Public Positions Theme Event 2.
276 Klaaren Briefing Paper for Public Positions Theme Event 2.
277 Law Society of South Africa Statistics for Legal Education and Development (LEAD) and the Legal
Profession (2014/2015) (2015) 25, 49.

278 Dugard & Drage Justice and Development Working Paper Series 2.
279 Wallis Advocate 33-37.
280 Sugarman (1985) California Law Review 558-622. See also Sugarman (1987) San Diego Law
Review 796: “When someone now makes a tort claim, rather than obtaining swift justice, he often will
wind up waiting years before his suit is resolved. Moreover, he frequently will come away from the
experience far more frustrated than satisfied. A victim today rarely can expect to recover directly from
181
a result, taking into account the high cost and time-consuming nature of litigation in
this regard, private insurance has assumed an increasingly important role, relieving
victims of loss of their financial burden. 281 However, considering the levels of poverty
in South Africa, the vast majority of citizens are probably not in a position to afford
insurance.
The concern over the costly and time-consuming nature of civil proceedings is not new
to the South African legal landscape. In its Report on Compensation to Workmen in
1904, the Select Committee already took note of the problems raised by employees
that the litigation process “has undoubtedly lengthened the time between the occurring
of the accident and the receiving of the compensation”282 and that the proposed
Workmen’s Compensation Act of 1905 had to provide compensation “to poor men
quickly, and as cheaply as possible.” 283 The same sentiment was echoed when the
legislature decided to introduce a no-fault based compensatory system for
occupational injuries and diseases via the COIDA: “In exchange for [forfeiting his
common-law claim against his employer, the employee] gets an immediate remedy in
the form of a statutory right to compensation without having to prove negligence on
the part of the employer.” 284
In its judgment relating to the constitutionality of the abolition of the motor vehicle
accident victim’s common-law claim against a wrongdoer in Law Society of South
Africa v Minister for Transport, 285 the CC commented on the nature of the civil litigation
process:
“The right of recourse under the common law proved to be of limited avail. The system of recovery
was individualistic, slow, expensive and often led to uncertain outcomes. In many instances,
successful claimants were unable to receive compensation from wrongdoers who had no means
to make good their debts. On the other hand, it exposed drivers of motor vehicles to grave
financial risk.”
The legislature has aimed to remedy this concern by, among other things, introducing
a no-fault basis for compensation of harm arising from motor vehicle accidents.
the individual who injured him. Instead, he will recover from an insurance company or a large impersonal
enterprise, such as a corporation or a government entity.”
281 Cane Atiyah’s Accidents 461-499; Deakin et al Tort Law 51-59; Hedley “Tort and Personal Injuries,
1850 to present” in Tort Law and the Legislature 235 249.

282 Select Committee Report of the Select Committee on Compensation to Workmen 12.
283 2.
284 Proceedings of the Extended Public Committee Debates of Parliament 1993-1994 (1994) 12306.
285 2011 (1) SA 400 (CC) para 17.
182
Furthermore, as the preamble to the proposed RABS indicates, the legislature has
identified the “need to simplify claims procedures, reduce disputes and create certainty
by providing defined and structured benefits […] and there is a need to establish
administrative procedures for the expeditious resolution of disputes that may arise and
to alleviate the burden on the courts.”
Lastly, the time-consuming nature and high transaction costs characteristic of the civil
litigation process was also taken into account when drafting the provisions of the CPA
that relate to its regulatory framework and access of justice. 286 With the introduction
of the CPA, the legislature has changed not only the substantive law relating to
defective consumer products, but it also effected changes to the administration of
justice insofar as the adjudication of consumer rights and disputes involving
consumers and business are concerned. For example, under the new regulatory
framework, the National Consumer Tribunal (“NCT”) and the National Consumer
Commission (“NCC”) have important roles. 287 While the NCT is an adjudicative body,
empowered to adjudicate on applications and allegations of prohibited practice, 288 the
NCC is primarily an investigative body that aims to enforce the provisions by the
Consumer Protection Act (“CPA”). 289 The establishment of these bodies, as well as
consumer courts, may be regarded as a response to the need for a cheaper, quicker,
speedier, more flexible and informal regulatory system. 290
It is argued that the nature of the civil litigation process, notably its potential under-
compensation of harm and the accompanying high transaction costs, has played a
significant role in justifying the legislative reform of the law of delict, in the areas where
the need for this type of reform is most pressing and the effect of reform can be most
widespread and cost effective.
286 Van Eeden Consumer Law 93-105; 387-447.

287 See section 69 of the CPA.
288 The NCT can make the following orders: grant interim relief, declare conduct to be prohibited, issue
an interdict for prohibited conduct, impose administrative fines, confirm consent orders, condone non-
compliance with its rules and procedures, confirm an order against an unregistered person to cease
engaging in certain activities, cancel or suspend a registrant’s registration, require payment to the
consumer of any excess amount charged, together with interest at the rate set out in the agreement
and any order required to give effect to a right set out in the Act.
289 It seeks to initiate and receive complaints, refer complaints for dispute resolution, investigate and
evaluate alleged prohibited conduct and offences, conduct interrogations, issue and enforce compliant
notices and make referrals to the NCC. In practice, however, many of these functions are now fulfilled
by the industry ombuds.
290 Van Eeden Consumer Law 98-99.
183
3.3.2 The ability of the legislature to regulate liability more comprehensively

than the judiciary
Another further consideration that have justified the statutory development of the law
of delict is the ability of the legislature to regulate liability more comprehensively than
the judiciary.
In Wagener, the SCA took account of the debate surrounding the potential introduction
of a strict liability regime for harm caused by defective consumer products. The court
noted that product liability reform in foreign jurisdictions had largely been achieved
through legislation and ultimately concluded that South Africa should adopt the same
route: “[i]f strict liability is to be imposed, it is the Legislature that must do it.” 291 In its
judgment it held that the legislature was better equipped to investigate the variety of
questions that would have to be answered prior to introducing a strict liability regime
in the context of defective products: 292
“1. What products should be included […] when it comes to determining the extent of the
liability? 2. Is a manufacturer to include X, the maker of a component that is part of the whole
article manufactured by Y; and which is liable if the component is defective? 3. Does defect mean
defect in the making process only or, in the case of a designed article, also a defect of design?
Should it include the failure, adequately or at all, to warn of possible harmful results? 4. Should
the liability be confined to products intended for marketing without inspection or extend even to
cases where the manufacturer does, or is legally obliged to, exercise strict quality
control? 5. What relevance should the packaging have - should liability, for example, be limited
to cases where the packaging precludes intermediate examination or extend to cases where the
manufacturer stipulates that a right such as a guarantee would be forfeited if intermediate
examination were made? 6. Is a product defective if used innocuously on its own, but which
causes damage when used in combination with another's product? 7. What defences should be
available? […] 8. Should the damages recoverable be exactly the same as in the case of the
Aquilian claim or should they be limited, as in some jurisdictions, by excluding pure economic
loss or by limiting them to personal injury?”
The court held that single instances of litigation could not provide the opportunity for
conducting the thorough investigation, analysis and determination that was necessary
to produce a cohesive and effective structure by which to impose strict liability. 293 The
court’s recommendation was ultimately heeded and the legislature, with the benefit of
more empirical data, time and product liability expertise, enacted the CPA. 294
291 2003 (4) SA 285 (SCA) paras 30-36.

292 Paras 30-36.
293 Paras 30-36.
294 From a comparative perspective, see also Cambridge Water Co v Eastern Counties Leather plc
[1994] 2 AC 264 305: “I incline to the opinion that, as a general rule, it is more appropriate for strict
liability in respect of operations of high risk to be imposed by Parliament, than by the courts.”
184
In addition to the CPA, the COIDA and the RAF Act are further examples of where the
legislature reformed major areas of the law of delict. The enactment of these statutes
enabled major legislative reform of the law of delict, as opposed to incremental judicial
development of an element of delictual liability. It is submitted that, whenever large-
scale development of a specific area within the law of delict may be required by specific
policy-based considerations as those discussed in paragraph 3.2 above, it appears
more appropriate to follow the legislative route. Indeed, this much was also recognised
by the CC, which stated as follows: 295
“In exercising their powers to develop the common law, Judges should be mindful of the fact that
the major engine for law reform should be the Legislature and not the Judiciary. In this regard it
is worth repeating the following dictum […] ‘Judges can and should adapt the common law to
reflect the changing social, moral and economic fabric of the country. Judges should not be quick
to perpetuate rules whose social foundation has long since disappeared. Nonetheless there are
significant constraints on the power of the Judiciary to change the law […] In a constitutional
democracy such as ours it is the Legislature and not the courts which has the major responsibility
for law reform […] The Judiciary should confine itself to those incremental changes which are
necessary to keep the common law in step with the dynamic and evolving fabric of our society.’”
3.3.3 The need to avoid arbitrary outcomes
In Fourway Haulage SA (Pty) Ltd v SA National Roads Agency Ltd, 296 Brand JA
reaffirmed the fact that any “legal system in which the outcome of litigation cannot be
predicted with some measure of certainty would fail in its purpose […] We therefore
strive for certainty.” This section prompts us to consider how the need to avoid arbitrary
outcomes in litigation, and thus to ensure legal certainty, could motivate legislatures
to develop the law of delict (or in common law parlance, tort law).
Scholars have argued that the tort system is essentially a “lottery” 297 and that it
“produces arbitrary outcomes.” 298 Sugarman summarises this argument as follows:
“[W]hat count considerably are: the talents of the lawyer one happens to have; the tenacity of the
defendant (or insurance adjuster) one happens to be up against; whether the defendant happens
to be a motorist, a company, or a governmental entity; how attractive (but not too attractive) and
how well spoken (but perhaps not too well spoken) the claimant happens to be; what race the
claimant is; what state and community the victim lives in; how well one is able to hold out for a
larger settlement; the whim of the jury if the case gets that far; and whether one is lucky enough
to have available the right sort of witnesses or other evidence of the injury and the defendant's
wrongdoing. In short, our current tort system is not a system of justice; it is a lottery.”
295 Carmichele v Minister of Safety and Security 2001 (4) SA 938 (CC) para 36 (references omitted).
296 2009 (2) SA 150 (SCA) paras 16-17.
297 Sugarman (1987) San Diego Law Review 796.
298 MA Franklin “Replacing the Negligence Lottery: Compensation and Selective Reimbursement”
(1967) 53 Virginia Law Review 774: “[T]he fault system is little more than an immoral lottery for both
plaintiffs and defendants.” See also Atiyah The Damages Lottery 143.
185
From this perspective, the imposition of tortious (or in our case, delictual) liability and
the payment of damages are impacted on by considerations unrelated to what the
parties deserve. 299 The outcome of litigation may be substantially determined by
contingent factors, including the availability of evidence, the quality of counsel, the
limits of insurance coverage, the financing of litigation, the whims of judges and juries,
and many other factors that are not conducive to the consistent and principled
application of law. 300
The argument that the tort system is unfair and unpredictable has been advanced to
justify reform proposals in some way or the other. For example, in New Zealand these
arguments eventually won the day and secured the development of the law relating to
the compensation of personal injuries arising from accidents. In its 1967 report, the
Royal Commission of Inquiry into Compensation for Personal Injury in New Zealand
asserted that “[t]he toll of personal injury is one of the disastrous incidents of social
progress”. 301 The commission identified a number of weaknesses with the
mechanisms available for dealing with personal injury, including particular problems
with tort law. One of the problems with tort law in cases of personal injury included “the
difficulty of establishing liability for loss and of attaching a monetary value to that loss,
resulting in the law being seen as, at best, uncertain and in some cases arbitrary and
capricious.” 302 Eventually, as indicated in paragraph 3.3.1, the legislature introduced
the Accident Compensation Act in New Zealand in 1972, thereby abolishing the tort
claim for harm arising from accidents.
Arguably, the statutory development of the law of delict by the CPA, the COIDA and
the RAF Act has been motivated by similar considerations. For instance, with regard
to the introduction of a strict liability regime for defective consumer products, the SCA
implied that such a development should be driven by the legislature, because it could
provide a more principled, logical and fair solution for the particular problem. 303
299 TD Lytton, RL Rabin & PH Schuck “Tort as litigation lottery: a misconceived lottery” Boston College
Review Vol. 52 (2010) 267 269.
300 Lytton, Rabin & Schuck Boston College Review (2010) 268-269.
301 New Zealand Law Commission Report Compensating Crime Victims (2008) 3.
302 3.
303 Wagener v Pharmacare Ltd; Cuttings v Pharmacare Ltd 2003 (4) SA 285 (SCA) paras 28-31.
186
Furthermore, in line with the arguments raised in foreign jurisdictions, the statutory
development of the COIDA and the RAF Act (and the proposed RABS) appears to be
motivated by the general consideration to ensure that the outcome of litigation is not
influenced by the contingent factors mentioned above. After all, the likelihood of a
victim receiving compensation under those statutes is not dependent on the quality of
counsel, the limits of insurance coverage, the financing of litigation, or the whims of a
particular judge.
3.4 Conclusion
The previous chapter investigated the legal position of South African crime victims
insofar as the compensation of their harm is concerned and concluded that the status
quo is unsatisfactory. It was therefore proposed that an alternative method should be
investigated to provide compensation for crime victims.
One particular alternative that has been adopted in a variety of foreign jurisdictions is
the establishment of a statutory compensation fund for crime victims. Should such an
alternative be adopted by the South African legislature, it will amount to the statutory
development of the law of delict insofar as the compensation of a specific group of
victims is concerned. However, for the reasons mentioned in the introduction to this
chapter, the adoption of such an alternative and subsequent development of the
common law requires a justifiable theoretical framework.
To establish such a framework, this chapter has examined the historical backgrounds
of important statutory developments within the law of delict. This investigation has
identified legal and public policy considerations which have justified the earlier
instances of legislative reform. It is proposed that these considerations may also aid
in providing the necessary theoretical framework on the basis of which the law of delict
may justifiably be developed in the future, at least insofar as the issue of compensation
is concerned.
The first consideration that was highlighted was the role played by the increased risk
of harm and the associated risk of no recovery of compensation. This consideration
was paramount in developing the law of delict’s compensatory response to victims of
motor vehicle accidents, defective consumer products and occupational injuries and
187
diseases. Although there is an undeniable utility associated with motor vehicle

transportation, enlarged labour forces and a growing manufacturing sector, these
benefits were accompanied by a substantial increase in the risk of harm arising from
those sectors. This required the South African legislature to produce a solution in
which these activities were permitted, but only on the condition that the most
appropriate enterprise were saddled with the cost of the risks they produced.
Ultimately, it decided that, in order to more effectively secure the compensation of a
victim’s harm, the compensatory mechanism would have to be reconfigured within a
statutory context.
The decision to do so was informed also by the significant desire to promote social
security. Prior to the advent of the Constitution, the achievement of greater social
security was already identified as a clearly pronounced goal that justified the statutory
interference with the common law of delict. The legislature’s desire to provide a variety
of accident victims with remedies that gave quicker and more cost-effective access to
compensation and to distribute the risk of certain risk-related activities throughout
society may therefore be regarded as an important consideration that have justified
the development of the law of delict in a variety of contexts.
With the enactment of the Constitution, and the entrenchment of the right to social
security as a fundamental human right, the legislature has openly committed itself
towards the notion of spreading risk to promote social inclusion and social solidarity.
The statutory establishment of compensation funds in respect of motor vehicle
accidents and occupational injuries and diseases – arguably two spheres in which
most individuals are most frequently exposed to the risk of harm – achieves these
goals.
Furthermore, the evidentiary difficulties involved in satisfying the common-law

requirement of fault, specifically in the form of negligence, has been criticised as
imposing a significant stumbling block on the pathway to obtaining compensation.
Otherwise deserving victims of harm have been struggling to satisfy this requirement
and, where the matter has been argued in court, a clear preference has been given
for the reform to be driven by a legislative process. Statutory reform provides an
advantage that single instances of litigation do not: it enables all the relevant stake-
holders to partake in the thorough processes of investigation, analysis and
188
determination that are required to produce a cohesive and effective structure for the
development of the law of delict.
By removing fault as a requirement for obtaining compensation, victims of workplace

injuries and diseases and defective consumers now have a greater theoretical chance
in succeeding with finding redress for the harm they have suffered. Similarly, as
indicated above, the proposed RABS will provide comparable opportunities. In addition
to achieving greater compensation levels than the fault-based system of delictual
liability, the statutory development of the law of delict have clearly been informed by
considerations of time and money.
Other general considerations that have been used to justify the statutory development
of the law of delict has also been considered justified where it has enabled a more
time-efficient and cost-effective route to compensation and where it has succeeded in
providing a principled, consistent approach to compensation.
It is proposed that the legal and public policy considerations identified in this chapter
aid in providing a justifiable theoretical framework for the statutory development of the
law of delict insofar as compensation of victims is generally concerned. However, by
itself it does not yet justify why crime victims should be singled out as a specific
category of victims that may come into consideration for statutory compensation (as
opposed to any other category of victim). Indeed, as alluded to in the introduction of
this chapter, where statutory compensation funds for crime victims have been enacted,
some concern has been expressed about the singling out this specific group of victims
for preferential treatment.
In the following chapter, attention will be given to the question whether the specific
development of the law of delict through the enactment of a statutory compensation
fund for crime victims can be justified on the basis of the considerations identified in
this chapter.
189
CHAPTER 4: JUSTIFYING THE LEGISLATIVE DEVELOPMENT OF THE LAW OF

DELICT BY ESTABLISHING A STATUTORY COMPENSATION FUND FOR
CRIME VICTIMS
4.1 Introduction……………………………………………………………………………191
4.2 The justifiability of establishing a statutory compensation fund for

crime victims………………………………………………………………………….194
4.2.1 Historical background: the SALRC Report…………………………………… 194
4.2.2 The two rationales suggested for the establishment of

a statutory compensation fund for crime victims…………………………….197
4.2.2.1 The legal duty rationale………………………………………………………197
4.2.2.2 The moral duty rationale……………………………………………………..199
4.2.3 Policy considerations that may potentially justify a statutory

compensation scheme for crime victims………………………………………201
4.2.3.1 The need to combat the risk of falling victim to crime………………………201
4.2.3.2 The role of the Constitution and the need to promote the
constitutional right to social security………………………………………..207
4.2.3.3 Evidentiary problems with applying the common-law

requirement of fault…………………………………………………………..209
190
4.2.3.4 Avoiding legal unpredictability and promoting legal certainty……………211
4.2.3.5 Higher compensation and lower transaction costs……………………….212
4.2.3.6 Improving the status of the criminal justice system………………………214
4.2.4 Considerations that potentially count against a statutory

compensation scheme………………………………………………………….216
4.2.4.1 Financial considerations that relate to the establishment

of a statutory compensation fund for crime victims………………………216
4.2.4.2 Administrative problems with the establishment of a statutory

compensation fund for crime victims……………………………………….220
4.2.4.3 Concerns that the establishment of a statutory compensation

fund raises about the function of the law of delict…………………………221
4.3 Should the statutory reform of the law relating to crime victim
compensation take place by adapting existing statutes or policies or
should a new, stand-alone statute be enacted?..................................................225
4.3.1 The existing policies and programmes that have a bearing

on the position of crime victims…………………………………………………226
4.3.2 The shortcomings of the existing policies and programmes

as well as further reasons that support the enactment of a
stand-alone statute that deals with the compensation of crime victims……233
4.4 Conclusion…………………………………………………………..……………………237
191
CHAPTER 4: JUSTIFYING THE LEGISLATIVE DEVELOPMENT OF THE LAW OF

DELICT BY ESTABLISHING A STATUTORY COMPENSATION FUND FOR
CRIME VICTIMS
4.1 Introduction
Thus far it has been argued that the position of crime victims under the current South
African legal regime is unsatisfactory as far as their compensation is concerned and
that it may be worthwhile to consider an alternative solution.
To improve the legal position of crime victims regarding their compensation, various
other jurisdictions have enacted statutory compensation funds. 1 Notwithstanding its
wide use in these jurisdictions, it cannot be assumed that this solution would also work
in a South African context. Statutory development of this kind requires justification.
Chapter 3 alluded to the “fundamental problem” 2 that confronts reformers of the law of
delict/tort law in this context, which is that “it is difficult to find a satisfactory rationale
for singling out violent-crime victims from other groups of unfortunates for special
treatment by the state.” 3 Some authors have gone so far as to argue that “[o]ften the
rationale behind the setting up of a compensation scheme is, in itself, weak and
unsubstantiated”. 4 Brooks summarises the central issue as follows: 5
“When one first confronts a proposal to alleviate the suffering of victims of crimes of violence, all
his humanitarian instincts are aroused. Reflection, however, forces him to ask: ‘Why alleviate the
suffering of victims of crimes of violence and not, for instance, that of the farmer who while
working in his field, is struck by ligtening [sic] and rendered a helpless invalid?’ This question is
not an easy one to answer. It is not enough to say ‘First things first,’ or “One thing at a time.’ By
what criterion may we justify the priority implicit in such a response?”
One of the central aims of this dissertation is to consider whether it is justifiable to

single out crime victims for preferential treatment as far as compensation is concerned.
To do so, the approach is as follows. First a general theoretical framework to constitute
1 See D Greer (ed) Compensating Crime Victims: a European Survey (1996); footnote 59 in paragraph
1.5 in chapter 1.
Victims of Crime) (2004) 182-183. See also RE Scott “Compensation for Victims of Violent Crimes: An
Analysis” (1967) 8(2) William & Mary Law Review 277 281; P Cane Atiyah’s Accidents, Compensation
and the Law 8 ed (2013) 303-308.
3 SALRC A Compensation Fund for Victims of Crime 182. See also Scott (1967) William & Mary Law
Review 281; Cane Atiyah’s Accidents 303-308.

4 SALRC A Compensation Fund for Victims of Crime 318; Cane Atiyah’s Accidents 30.
5 J Brooks “The Case for Creating Compensation Programs to Aid Victims of Violent Crimes” (1976)
11(4) Tulsa Law Journal 487.

192
a tenable basis for the potential statutory development of the law of delict in the future
(regarding compensation of victims generally) was developed in chapter 3. This was
done by examining the historical background of arguably the three most significant
statutes that have influenced the compensation of victims in the context of the law of
delict 6 and identifying policy considerations that have justified the legislative reform of
the law of delict in the past and which may justify future statutory development. What
remains to be determined is whether the proposed statutory development of the law
of delict (via the establishment of a statutory crime victim compensation fund) can fit
within this general theoretical framework. 7
This will be done by referring to the considerations identified in chapter 3, establishing

whether those considerations are also applicable in the context of harm suffered by
crime victims and whether they could consequently be used to provide the necessary
justification for the proposed development of the law of delict. In the process, the
potential merits and some of the problems with the suggested reform of the law will be
discussed.
Before commencing, a final introductory remark may be made. As noted, most foreign
jurisdictions electing to develop the law in relation to crime victim compensation have
done so by enacting legislation and establishing compensation funds. This dissertation
considers whether similar reform of the South African law relating to the compensation
of crime victims is justifiable. For the sake of clarity, it is emphasised that the approach
adopted in this chapter is to describe and evaluate various policy considerations that
could potentially justify statutory development of the law (see paragraphs 4.2.3.1 to
4.2.3.6 below) as well as considerations that could potentially stand in the way of this
reform (see paragraphs 4.2.4.1 to 4.2.4.3 below). These considerations will be
weighed and balanced against each other before a conclusion as to the justifiability of
a potential statutory compensation fund will be made in paragraph 4.4.
6 The Compensation of Occupational Injuries and Diseases Act 130 of 1993, the Road Accident Fund
Act 56 of 1996 (“RAF Act”) and the Consumer Protection Act 68 of 2008.
7 As noted in paragraph 3.1 above, a distinction may be drawn between the reasons advanced for the
justification of the proposed statutory crime victim compensation scheme and its scope. In this regard,
it should be noted that, while chapters 3 and 4 deal with the issue of justification of the scheme, chapter
5 deals with the specific issues related its scope (should it be enacted). Therefore, chapters 3 and 4
deal mainly with legal and public policy considerations justifying statutory reform of the law of delict in
South Africa, whereas chapter 5 refer to issues of policy and administrative convenience.
193
However, it may be asked whether it has not been assumed that an alternative solution
to the problem must be steered by the legislature as opposed to the judiciary. The
reasons briefly mentioned below deal with this concern.
First, as the Supreme Court of Appeal (“SCA”) remarked in Wagener v Pharmacare

Ltd; Cuttings v Pharmacare Ltd, 8 the judiciary may be better placed to develop the law
of delict on an incremental basis, but, generally speaking, the legislature is better
placed to develop a significant area within the law. Indeed, for the reasons outlined in
paragraph 3.3.2 in chapter 3, the legislature is the more appropriate vehicle to deal
with comprehensive, large-scale development of the law of delict because it may better
use empirical data and research expertise to develop a framework for the potential
development of the law. Secondly, as explained in chapter 2, the common law of delict
provides an unsatisfactory response to the issue of crime victim compensation. As
explained, for predominantly financial reasons, crime victims choose not to institute
common-law delictual claims against the criminal, but instead aim to hold the state
vicariously liable on the basis that their employees wrongfully and culpably caused the
victim’s harm. However, as illustrated, the judicial expansion of state delictual liability
may be considered theoretically unsound while, from a practical and financial
perspective, it arguably undermines the effort to combat crime. 9 In other words, the
common law of delict has already developed an alternative response to holding the
actual perpetrator of the crime delictually liable, but for the reasons set out in chapter
2 it may be doubted whether this solution is desirable.
Therefore, it is proposed that the law relating to crime victim compensation should
follow the same route that was taken in the cases of harm arising through motor vehicle
accidents, occupational injuries and diseases and defective consumer products, i.e.
statutory reform.
8 2003 (4) SA 285 (SCA) para 10.

194
4.2 The justifiability of establishing a statutory compensation fund for crime

victims
Chapter 3 provided a general theoretical framework that may provide a basis for future
statutory development of the law of delict. In this part of the chapter, that framework
of considerations will be used to determine whether the development of the law
through the enactment of a crime victim compensation fund is justifiable. Before doing
so, however, the following section will provide a brief historical background relating to
the potential statutory development of a crime victim compensation fund in South
Africa.
4.2.1 Historical background: the SALRC Report
The SALRC set out to investigate the viability of developing the law of delict by
enacting a statutory compensation fund in 2004. 10 It is worthwhile to take note of this
attempt because it provides further evidence of the need for a justification for this act
of legislative intervention.
The examination of this issue was undertaken within a broader framework that related
to the general treatment of crime victims by the criminal justice system. It therefore
focused not only on the compensation of crime victims, but also on issues pertaining
to restorative justice and victim empowerment. 11 Nevertheless, the report of the
SALRC included a synopsis of crime victim compensation under South African law, a
comparative overview of the legal position of crime victims in the United States of
America and the United Kingdom (“UK”), a summary of the merits of a statutory
compensation scheme for crime victims in South Africa as well as other victim
empowerment issues (“SALRC Report”).
The commission confirmed that various jurisdictions have adopted strategies that
extend the right to access compensation for crime victims beyond the realm of the
common law of delict/tort law. 12 Their view is in line with academic writing inasmuch
as it demonstrates that the development of the law of delict through legislation that

11 1-7.
12 11.
195
deals specifically with the compensation of crime victims appears to be the most
popular method by which reform of this branch of the law has occurred. 13
Taking into account some of the arguments that may be raised for and against the
establishment of a statutory compensation fund for crime victims, the SALRC
concluded that, although “there seemed to be substantial support for the creation of a
compensation fund” 14 the establishment of the fund was not a viable option. 15 This
conclusion was reached primarily on the basis that a fund could not be afforded in the
financial climate of the time and because certain prerequisites required for the effective
and efficient administration of a crime victim compensation fund were absent at the
time. 16 As a result, the SALRC came to the conclusion that a “compensation scheme
should rather be seen as an additional component of a comprehensive victim
empowerment programme.” 17
The SALRC also considered the “possibility of incrementally developing a

compensation scheme.” 18 Briefly stated, it considered that, as opposed to enacting a
fully-fledged compensation fund for all crimes, a fund may be established which
provided compensation only in respect of certain crimes; and that other crimes may
be added on an incremental basis. Despite the fact that there was support for this
view, “the reality of the lack of funds, the problem of justifying a limitation of eligibility
for payments from the fund, the problems relating to the administration of the fund and
the problems with regard to the risks of fraud” 19 forced the commission to conclude
that this too was not a viable option.
The SALRC criticised the existing crime victim initiatives undertaken by the South
African government for being inefficient and lacking the ability to deal adequately with
the needs of crime victims. 20 In its view new legislation had to be adopted to provide
13 48-98. See also Greer Compensating Crime Victims; D Miers “Offender and state compensation for
victims of crime: Two decades of development and change” (2014) 20(1) International Review of
Victimology 145 146-160.
15 111-118, 321-326.
16 111-118.
17 321.
18 196, 322.
19 322.
20 323. See paragraph 4.3.1 below for a discussion of the existing policies and programmes relating to

196
for a comprehensive framework that would ensure a better deal for victims of crime. 21
Referring to Canada and Australia as providing an example of the way forward for the
South African legislature in relation to crime victim compensation, 22 the commission
formulated its ultimate proposal as follows: 23
“[T]he Commission was of the view that […] legislation should, as a minimum, provide for: (a) the
creation of a permanent structure, like an office for Victims of Crime within government structures,
to take care of the needs of victims on a permanent basis; (b) the creation of a permanent body
or institution (like an Advisory Council) to advise government on policy issues and legislative
amendments to meet the needs of victims of crime; (c) the introduction of legislative […] principles
to guide the treatment of victims of crime; and (d) the creation of a dedicated fund to facilitate
and develop the establishment of victim services. The above principles are supported by all
commentators to the Commission’s discussion documents.”
However, at present, no comprehensive legislation has been enacted. Furthermore, it

is contended that the mere fact that the SALRC rejected the creation of a statutory
compensation fund on the basis of predominantly financial reasons does not prevent
a further study of whether the enactment of this kind of statutory compensation fund
may be justified. Indeed, as the SALRC noted, “the establishment of a compensation
fund should not be abandoned but developed over time as a long term project within
the broader objective of improved services for victims of crime.”24
Very important for the purpose of this dissertation, the commission also stated that
“developing a motivation for the establishment of a [statutory compensation fund] in
SA remains incomplete, and must be completed if legislation is to be drafted, since no
law should be passed without its objectives being clearly defined and costed.”25
The remainder of this section will focus on the gap identified by the SALRC and shift
its attention to the justifiability of establishing a crime victim compensation fund in
South Africa. Before examining some of the policy considerations that may apply in
this context, attention will be paid to two competing rationales for the establishment of
a crime victim compensation fund.
21 323.
22 334-335.
23 334. The commission pointed out that the Probation Services Act 11 of 1986 provided a legislative
basis for establishing victim-centred programmes aimed at the compensation of crime victims.
24 322.
25 318-319.
197
4.2.2 The two rationales suggested for the establishment of a statutory

There is a view that the state owes a legal obligation to its citizens to maintain law and
order and when it fails to prevent crime, it has a legal duty to compensate the victims.
This can be called the “legal duty rationale”. By contrast, it has also been suggested
that a legal duty rationale is not justifiable, and that the state’s duty to compensate
crime victims is a moral one, which can only be explained on the basis of welfare,
sympathy and humanitarian reasons. This “moral duty rationale” is aimed at providing
“practical social security assistance to the victim.” 26 These rationales will now be
considered.
4.2.2.1 The legal duty rationale
In the run-up to the establishment of the first statutory compensation schemes in New
Zealand and the UK in the early 1960s, Fry reasoned that there is a legal duty on the
state to compensate crime victims because the state denied measures that “might be
thought of [as] self-protective, and then fail[ed] to halt crimes of violence.” 27 She
argued that, because the state “forbids our going armed in self-defence[, it] cannot
disown responsibility for its occasional failure to protect.” 28 The idea was supported by
Supreme Court Associate Justice Goldberg, who contended that “[t]he victim of a
robbery or an assault has been denied the ‘protection’ of the laws in a very real sense,
and society should assume some responsibility for making him whole.” 29
This argument may be criticised on the following bases. First, it seems to carry weight
only in relation to those jurisdictions where it would be prohibited to arm oneself for
purposes of self-defence. Contrary to the society to which Fry relates her argument,
South African citizens are generally allowed to arm themselves and to protect
26 282.
27 Brooks (1976) Tulsa Law Journal 479. See also M Fry “Justice for Victims” The Observer (7 July
1957) 8; Williams “The adoption of Criminal Injuries Compensation Scheme: Chronology” 5 available
at <https://www.open.ac.uk/Arts/history/downloads/pdfs/Williams_Compensation.pdf> (accessed on 9
August 2016).
28 Fry The Observer (1957) 8. See also Scott (1967) William and Mary Law Review 280; D McGills & P
Smith United States Department of Justice: Compensating Victims of Crime – An Analysis of American
Programs (1983) 2-6.
29 AJ Goldberg “Equality and Government” (1964) New York University Law Review 39 205 224; P
Burns Criminal Injuries Compensation (1980) 99-103.

198
themselves against criminal attacks in a manner that is lawful. 30 Within this framework,
the idea that the state’s failure to prevent harm must necessarily attract legal liability
loses its appeal.
Furthermore, the argument seems to suggest that the state’s legal liability for harm
arising from crime derives from its prohibition of carrying weapons and defending
oneself. However, there appears to be no convincing evidence in support of the
argument that owning, possessing or having regular access to weapons would result
in the decrease of criminal attacks or the scope of harm that may arise from crime.
Indeed, it is arguable that the use, possession or access to weapons will not only allow
self-defence against criminal attacks, but may just as likely be used to further such
attacks. 31
In addition, Fry’s argument assumes that, “if left alone by the state, the individual could
protect himself.” 32 However, as Brooks pointed out: “That the individual was ever able
to do this seems to be denied by the contentions that governments were established,
for one reason, to better protect the individual.” 33
Another argument in favour of imposing a legal duty to compensate crime victims on

the state is that it “makes it harder for [crime victims] to secure reparation by
incarcerating the offender, making it virtually impossible for him to honour any civil
judgment that might be rendered against him.” 34 The implication is that if the offender
is not incarcerated he would be able to earn income, which could be used to
compensate the victim. This argument, however, may be dismissed if we consider
that, even if the state did not take any action against crime victims, it is improbable
that the offender would be in a position to compensate the crime victim for the harm
he caused, because of his probable impecuniosity. 35
30 JM Burchell Principles of Criminal Law 3 ed (2005) 226-256.

31 Civilian Secretariat for Police White Paper on Safety and Security (2016) 12-15.
32 Brooks (1976) Tulsa Law Journal 479-480.
33 479-480.
34 Brooks (1976) Tulsa Law Journal 480-481; J Goodey Compensating Victims of Violent Crime in the
European Union (2003) 11-12. See also AM Linden The Report of the Osgoode Hall Study on
Compensation for Victims of Crime (1968) 5; Burns Criminal Injuries Compensation 103-113; Fry Arms
of the Law (1951) 125.
35 Burns Criminal Injuries Compensation 111; SALRC A Compensation Fund for Victims of Crime 315.
For a comparative perspective see also LJ McQuillan & H Abramyan, “The Tort Law Tax” (2007) Wall
Street Journal 1 available at <http://www.wsj.com/articles/SB117496524456750056> (accessed on 2
February 2015); Miers (2014) International Review of Victimology 148-154.
199
In conclusion, it is compelling to note that none of the jurisdictions that have elected
to enact a statutory compensation fund for victims of crime appear to have based the
legislative development on the argument that the state has a legal duty to compensate
the crime victim. 36 Essentially, we may conclude that this view “is too broad to receive
widespread support.”37
4.2.2.2 The moral duty rationale
The “most widely accepted” 38 rationale justifying the legislative enactment of a

statutory compensation scheme for crime victims is centred on the notion that the state
has a moral duty to compensate victims of crime. 39 In its distilled form, this argument
is based on the idea that the compensation of crime victims by a state-funded
compensation scheme is the “right thing to do” from a moral point of view. 40
Brooks explains that the moral duty of the state stems from an “inclination toward a
certain philosophical disposition”41 in terms of which the state’s failure to prevent harm
arising from crime constitutes a moral “wrong” 42 and compensation “by the state is the
curative [moral] ‘right.’” 43 Writing about the rationale underlying the adoption of the
Criminal Injuries Compensation Scheme in the UK in 1964, Miers sheds light on this
moral duty: 44
“Compensation is given to victims of violent crime in recognition of a sense of public sympathy

for the pain and suffering of the victim. In an earlier consultation, the Home Office asserted that
a financial award is society’s way of acknowledging the harm that has been done to the victim as
a representative of the community.”
36 See SALRC A Compensation Fund for Victims of Crime 282 for reference to a review conducted for
the criminal compensation scheme in Northern Ireland: “Neither in the United Kingdom, nor in any other
jurisdiction of which we have knowledge, does the State regard itself as a kind of surrogate offender.”
37 Burns Criminal Injuries Compensation 115.
38 116.
39 See Burns Criminal Injuries Compensation 116-120; Miers (2014) International Review of Victimology
154-156; Cane Atiyah’s Accidents 299-308.

40 Miers (2014) International Review of Victimology 155. See also D Miers “Compensating deserving
victims of violent crime: the Criminal Injuries Compensation Scheme 2012” (2014) 34 Legal Studies
242 247.
41 Brooks (1976) Tulsa Law Journal 483.
42 483.
43 483.
44 Miers (2014) International Review of Victimology (references omitted) 155. See also the Ministry of
Justice Getting it Right for Victims and Witnesses (2012) 49; Home Office Rebuilding Lives: Supporting
Victims of Crime Home Office (2005) 21.
200
Support for this wording is to be found in the 1964 White Paper, 45 which emphasised
the fact that it cannot be accepted that “the State is liable for injuries caused to people
by the acts of others,” 46 and that “the public does, however, feel a sense of
responsibility for and sympathy with the innocent victim, and it is right that this feeling
should find practical expression in the provision of compensation on behalf of the
community.” 47
In a comparative overview of statutory compensation schemes, Miers reiterates that

this rationale refers to the “public sense of responsibility for and sympathy with the
innocent victim, which makes it right for that feeling to be given practical expression.” 48
Similarly, Goodey argues that the establishment of various state compensation
schemes in many European jurisdictions reflect “the development of the welfare state
across large parts of Europe” 49 and that it may be regarded as a form of social
assistance to the most vulnerable members of society. 50
In its report, the SALRC rejected the argument that the state should attract legal liability
for the harm which citizens may suffer as a result of crime. The commission noted that
compensation “should not be understood as a reward, but rather monetary assistance
which can aid people in dealing with the impact of a violent crime, and with some of
the costs associated with a crime”. 51 In line with the moral duty rationale, the SALRC
therefore envisaged that, through the establishment of a compensation fund for crime
victims, the state may therefore assist citizens in regaining their status as active
members of society more quickly so that they may contribute towards their own well-
being and that of others sooner than would otherwise be the case. 52
It may therefore be more convincing to argue that the enactment of a statutory

compensation fund for crime victims is justified by the state’s moral duty to injured
victims of crime, as opposed to suggesting that the state has a legal duty to
45 White Paper “Compensation of Victims of Crimes of Violence” (1964) (cmnd 2323).

46 Williams The adoption of the Criminal Injuries Compensation Scheme: Chronology (no date provided)
6.
47 White Paper “Compensation of Victims of Crimes of Violence” (1964) (cmnd 2323). See also Burns
Criminal Injuries Compensation 116; Miers (2014) Legal Studies 246-247.
48 Miers (2014) Legal Studies 247 (references omitted).
49 Goodey Discussion Paper of the National Centre for Victims of Crime 11. See also SALRC A
Compensation Fund for Victims of Crime 284; Brooks Tulsa Law Journal (1976) 478-479.
50 See also Scott (1967) William and Mary Law Review 280.
52 298.
201
compensate victims for the harm they suffer arising from crime. Nevertheless, to
suggest that there is a moral duty on the state to assist and alleviate the plight of crime
victims does not go far enough to justify why they, but not other categories of victims,
should receive statutory compensation for the harm they suffer as a result of the
conduct of others. The question therefore still remains: are there valid reasons that
could justify the singling out of crime victims for preferential treatment in South Africa?
To answer this question, attention will now be given to the policy considerations
identified in chapter 3 with the view to determining if they could justify the proposed
statutory reform of the law relating to crime victims through the establishment of a
crime victim compensation fund.
4.2.3 Policy considerations that may potentially justify a statutory

compensation scheme for crime victims
4.2.3.1 The need to combat the risk of falling victim to crime
In chapter 3, it was argued that the existence and extent of a risk of harm has played
a key role in the South African legislature’s decision to develop the law of delict in the
context of motor vehicle accidents, occupational injuries and diseases and defective
consumer products. Here it will be argued that the risk of falling victim to crime may
potentially justify the establishment of a crime victim compensation fund in a similar
way.
Some of the central national statistics in respect of crimes against the person can be
summarised as follows: 53
53 The statistics are available on the South African Police Services’ website, available at:
<http://www.saps.gov.za/resource_centre/publications/statistics/crimestats/2015/crime_stats.php>
(accessed on 31 May 2016). See also: ISS Crime Hub “Fact Sheet: Explaining the official crime
statistics for 2013/2014” available at <http://www.issafrica.org/uploads/ISS-crime-statistics-factsheet-
2013-2014.pdf> (accessed on 9 February 2015).
202
2006 2007 2008 2009 2010 2011 2012 2013 2014 2015
CRIME
- - - - - - - - - -
CATEGORY
2007 2008 2009 2010 2011 2012 2013 2014 2015 2016
Murder
19 106 18 400 18 084 16 767 15 893 15 554 16 213 17 023 17 805 18 673
Total Sexual
Offences
64 071 62 484 69 197 66 992 64 921 60 539 60 888 56 680 53 617 51 895
Attempted
murder
19 957 18 643 18 140 17 247 15 360 14 730 16 236 16 989 17 537 18 127
Assault with
the intent to
inflict grievous
216 754 208 705 202 328 203 807 197 470 191 612 185 050 182 333 182 556 182 933
bodily harm
Common
assault
207 869 195 885 190 709 194 922 184 103 180 165 171 653 166 081 161 486 164 958
Common
robbery
70 598 64 417 58 764 56 993 54 442 52 566 53 196 53 505 54 927 54 110
Robbery with
aggravating 126 038 117 760 120 920 113 200 101 039 100 769 105 488 118 963 129 045 132 527
circumstances
Total Crimes
Against The 724 393 686 294 678 142 669 928 633 228 615 935 608 724 611 574 616 973 623 223
Person
These statistics confirm that South Africa is overwhelmed by violent crime. It is

particularly alarming to realise that the murder rate is approximately five times higher
than the 2013 global average of 6,2 per 100 000. 54 The murder rate increased from
32,9 per 100 000 in 2014/2015 to 33,9 per 100 000 in 2015/2016. To put it differently,
in 2015/2016 a murder was recorded on average 51 times per day. 55 Statistics
provided by the European Institute for Crime Prevention and Control International
Statistics on Crime and Justice in 2011 indicate that, with around 1 188 assaults being
recorded for every 100 000 people, 56 South Africa has one of the highest assault rates
in the world. To make matter worse, the official assault statistics of the South African
Police Services (“SAPS”), as tabled above, may be doubted if it is taken into account
54 Africa Check “Factsheet: South Africa’s 2014/2015 murder and robbery crime statistics” available at
<https://africacheck.org/factsheets/factsheet-south-africas-201415-murder-and-robbery-crime-
statistics/> (accessed on 26 August 2016).
55 Africa Check “Factsheet: South Africa’s 2015/2016 crime statistics” available at <https://africa
check.org/factsheets/factsheet- south-africas-201516-crime-statistics/> (accessed on 2 June 2017).

56 European Institute for Crime Prevention and Control International Statistics on Crime and Justice
“Countries Compared by Crime > Assault rate. International Statistics at NationMaster.com” available
at <http://www.nationmaster.com/country-info/stats/Crime/Assault-rate> (accessed on 26 August
2016).
203
that the “tendency among victims to report assault incidents to the police is
declining.” 57 With this in mind, the incidence of these crimes may be much higher than
what is asserted by the SAPS.
The SAPS statistics indicate that there has been a slight decrease in the number or
rapes from 47 588 in 2008/2009 to 46 253 in 2013/14. 58 However, the rape statistics
must be understood against the background of research done by the Medical
Research Council, which suggests that only one out of every nine rapes is actually
reported to the police and that this number is therefore inaccurate. In fact, the council
alleges that the number of rapes for 2013 was closer to a staggering 416 277. 59 Not
taking into account unreported instances of rape, the European Institute for Crime
Prevention and Control’s International Statistics on Crime and Justice nevertheless
indicate that 132 per 100 000 South African citizens are rape victims, which is
considered as one of the highest rates in the world. 60
These statistics demonstrate that, arguably, with the possible exceptions of poverty,
unemployment and the struggling economy, “no single issue of governance comes
close to the levels of attention and concern associated with the problems of crime,
criminality and victimisation.”61 Although such a high crime rate has social, political
and psychological effects on victims and the broader society alike, the economic
consequences have been emphasised as proving especially significant. For instance,
the report published by the SALRC pointed out that the “sheer volume of crime, as
well as the proportion of violent crime, ensures that crime in South Africa is inordinately
expensive to the society and individuals.” 62 To get a sense of the economic
57 Africa Check “Fact Sheet: South Africa’s 2014/2015 assault and sexual crime statistics” available at
<https://africacheck.org/factsheets/factsheet-south-africas-201415-assault-and-sexual-crime-
statistics/> (accessed on 1 June 2016).
58 ISS Crime Hub “Fact Sheet: Explaining the official crime statistics for 2013/2014” available at
<http://www.issafrica.org/uploads/ISS-crime-statistics-factsheet-2013-2014.pdf> (accessed on 9
February 2015). Statistics provided to Africa Check by the South African Police Service reveal that
42,596 rapes were reported in 2015/16 – see Africa Check “GUIDE: Rape Statistics in South Africa”
available at <https://africacheck.org/factsheets/guide-rape-statistics-in-south-africa/> (accessed on 2
June 2017).
59 The Independent Police Investigative Directorate Annual Report 2012/2013 (2013) 15-16.
60 Rape Crisis “Prevalence of Rape” available at <http://rapecrisis.org.za/rape-in-south-
africa/#prevalence> (accessed on 23 June 2016). According to NationMaster, which compared the
various rape rates of several countries, South Africa has the highest rape rate in the world since 2004:
“Countries Compared by Crime>Rape rate. International Statistics at NationMaster.com” (available at
<http://www.nationmaster.com/country-info/stats/Crime/Rape-rate>) (accessed on 23 June 2016).
62 24.
204
consequences for an individual crime victim, consider the following set of costs to
which he may be exposed: 63
“[P]roductive years lost by victims who are killed or seriously injured[,] working days lost during
convalescence[,] reduced productivity following violent victimisation[,] working days lost assisting
the investigating officer and attending court[,] working days lost replacing lost and damaged
property[,] taxes used to pay for the provision of the services of the criminal justice system[,]
insurance premiums and payments for private security[,] lost and damaged property[,] medical
costs[,] lost investments and economic opportunities flowing from the increased costs of doing
business in a high crime environment [and the] reductions in pleasure derived when activities are
avoided as a result of a fear of crime.”
In comparison with the statistics provided in chapter 3 in relation to fatalities that result
from motor vehicle accidents (for example, 13 967 in 2010) or the number of people
being injured in motor vehicle accidents (for example, 159 704 in 2000), it becomes
apparent that the risk which South African citizens face of falling victim to especially
violent crime (for example, 18 673 murders in 2015-2016 and 182 933 assaults with
the intent to do grievous bodily harm in 2015-2016) is a very significant one. In fact,
based on the statistics set out in this dissertation, it appears as though the risk that a
South African will fall victim to a violent crime is much higher than the risk that he
would suffer from a motor vehicle accident.
Similar to victims of motor vehicle accidents, defective consumer products and

occupational injuries and diseases, crime victims, are exposed to the further risk of
receiving no compensation if the initial risk of harm materialises. Reference has
already been made of research indicating the likely impecuniosity of criminals. 64
Of course, a victim who has suffered harm as a result of the culpable conduct of a
state employee might be successful in holding the state vicariously liable – if the victim
has the funds to afford private litigation, the luxury to live without compensation for a
considerable period of time and the means to prove all of the requisite elements of
delictual liability. However, this option will conceivably not be available to most South
African crime victims, which means that, without a remedy, they will likely be forced to
shoulder the burden of the harm by themselves.
In summary, South African citizens are exposed to the substantial risk of falling victim
to harm from crime and are equally exposed to a risk of receiving limited or no
63 24-25. See also National Planning Commission National Development Plan (2011) 349-361.
64 See paragraph 1.3 in chapter 1; SALRC A Compensation Fund for Victims of Crime 74.
205
compensation. This means that the need to combat the risk of harm that operated to
justify the enactment of the COIDA, the RAF Act and the CPA is also applicable here. 65
Brooks summarised the legislative development of tort law on the basis of this risk as
follows: 66
“Compensation to victims of crime is a new suggestion in the sense that it represents a recent
and still current attempt to meet what is felt to be a societal need. [It] represent[s] an attempt to
secure mutual protection against a risk which is reasonably certain for the large group though
uncertain for the individual, through the pooling of fixed contributions so that the cost of the
average risk applies to each member of the group.”
This extract brings into focus the following related question: who should bear the risk
of harm? In the case of the COIDA and the CPA, the notion of enterprise liability
provides an adequate explanation for why the employer and the manufacturer may be
made to shoulder the financial cost of the risks created by employment and
manufactured goods, respectively. 67 Essentially, the employer and manufacturer
creates the risk of harm which may materialise while also potentially benefiting the
most from the respective enterprise and must therefore carry the harm that results
therefrom.
In the case of harm arising from motor vehicle accidents, however, the notion of
enterprise liability fails to explain why innocent road users are asked to make a
financial contribution towards the RAF in the form of fuel levies. 68 Nevertheless,
although they do not stand to benefit from the use of roads in the same way that a
manufacturer stands to benefit financially from the manufacture or consumer products,
the financial contribution that innocent road users are obliged to make is arguably
justifiable on the basis that they contribute towards the creation of a significant risk of
harm through their use of motor vehicles.
Similarly, enterprise liability does not appear to find application in the context of crime
victim compensation. Most crime victim compensation funds appear to be tax-funded,
i.e. innocent tax-payers’ monies are used to compensate victims of crime although

66 Brooks Tulsa Law Journal (1976) 478.
67 See paragraphs 3.2.1.3 and 3.2.1.4 in chapter 3.
68 See Road Accident Fund “Fuel Levy” available at <http://www.raf.co.za/about-us/pages/fuel-
levy.aspx> (accessed on 26 June 2017).

206
they did not create, or stand to benefit from, the risk of harm. 69 Therefore, on this point
they apparently differ from the COIDA or the strict liability regime under the CPA. They
also differ from the RAF insofar as it may be argued that all road users contribute
towards the creation of a risk of harm by making use of motor vehicles on roads
whereas not all South African citizens may be said to contribute towards the risk of
harm arising from crime.
In response to the above, it requires emphasis that the need to combat the risk of harm
arising from crime must be separated from the issue of responsibility for that risk.
Important as it is to determine who should ultimately take responsibility for the risk of
falling victim to crime, it remains a valid consideration that, in principle, the existence
and extent of the risk of harm arising from crime could justify the statutory development
in the law of delict.
Furthermore, it is submitted that the following statement by Miers, who writes about
the justification of a crime victim compensation fund from a comparative perspective,
also applies in the South African context: 70
“It is an incontestable fact that each one of us has a statistically determinable risk of victimization.
Where schemes are funded by general taxation we may accept that it is levied for the purpose
of insuring us against the risk when it eventuates. In that sense, a victim is, on the occasion of
the victimization, a representative of this actuarially constructed group. This argument for public
insurance against criminal victimization resonates with some conceptions of the functions of tort
law that it is socially more just and economically more sensible to distribute losses occasioned
by criminal activity at large, rather than let them fall on the particular victim.”
In other words, the enactment of a crime victim compensation fund – and requiring
innocent members of the public to make financial contributions towards such a fund –
arguably relies on “the general proposition that crime losses are endemic to the entire
society and that [those] endemic losses should be spread throughout the entire
group.” 71 Scholars have correctly pointed out that an “obvious analogy” 72 may be
drawn between such risk and the “statistically determinable risk of being injured in a
69 SALRC A Compensation Fund for Victims of Crime 119-122. However, in the United States of
America, legislation has been created to direct the revenue generated through the payment of fines or
forfeited bail monies towards victim compensation.
70 Miers (2014) International Review of Victimology 155 (references omitted).
71 Scott (1967) William and Mary Law Review 282.
72 Miers (2014) International Review of Victimology 155.
207
road accident […] which, like criminal victimization, falls unevenly across the
population.” 73
In addition, the fund, if it were to be enacted, may also be financed by the proceeds
paid into the Criminal Asset Recovery Account, set up under the Prevention of
Organised Crime Act 121 of 1998, which was discussed in paragraph 2.3.3 in chapter
2. If this were to be done, it would not only be innocent tax-payers that would contribute
to the fund, but also those who have benefited from unlawful activities. 74
Lastly, it should be remembered that, under the current regime of expanded state
delictual liability for harm arising from crime, where the state has been held vicariously
liable for a series of crimes committed in a divergent range of circumstances, the
innocent taxpayer is in any event ultimately responsible for the compensation of the
crime victim. As such, a statutory compensation fund, which would require at least a
certain category of citizens to contribute towards such a fund, will not be different in
principle to the current legal regime.
4.2.3.2 The role of the Constitution and the need to promote the constitutional
right to social security
In paragraph 3.2.2 of chapter 3, attention was given to the role which the Constitution
has played in justifying earlier statutory development of the law of delict. Indeed, the
COIDA, the RAF Act and the proposed RABS has been justified on the basis that it
seeks to give effect to the constitutional right to reasonable access to social security. 75
The establishment of a statutory compensation fund for crime victims could be used
to give effect to the constitutional right to social security. This could potentially be done
because, as the experience with the RAF Act and the COIDA has illustrated, the route
73 Miers (2014) International Review of Victimology 155. See also Scott (1967) William and Mary Law
Review (1967) 284-286. See further paragraph 3.2.1.2 in chapter 3 above for the statistics relating to
motor vehicle accidents. See also the concluding remarks made in this regard in paragraph 6.3.2 in
chapter 6.
74 Of course, as will be discussed in more detail in paragraph 5.5.1 in chapter 5, it should be emphasised
that none of the above should mean that the perpetrator of a crime will be absolved from his common-
law delictual liability.
75 MP Olivier, JF Khoza, L Jansen van Rensburg & E Klinck “Constitutional Issues” in MP Oliver, N Smit
& E Kalula (eds) Social Security: A Legal Analysis (2003) 49-119; Law Society of South Africa and
Others v Minister for Transport and Another 2011 (1) SA 400 (CC).
208
to compensation is arguably more cost-effective and quicker if a victim institutes a

claim against a statutory fund, when compared to instituting a common-law delictual
claim against the perpetrator of the crime or, alternatively, the state. 76
As indicated above, falling victim to crime may bring about severe financial and
accompanying social consequences. 77 Setting up a more cost-effective route to obtain
compensation would arguably mean that more crime victims could in this way be
compensated, thereby alleviating the socio-economic consequences of being a crime
victim. Doing so along a cheaper, more time-efficient route could assist in the
empowerment of the historically disadvantaged, promoting fundamental human rights
(particularly human dignity), addressing past injuries and seeking to provide an
adequate standard of life to all individuals – all of which constitute part of the right to
social security.
As discussed in chapter 2, the judgments of the CC in K v Minister of Safety and

Security 78 and F v Minister of Safety and Security 79 show the significant role which the
court assigns to the Constitution in the development of the vicarious liability doctrine.
It was argued in chapter 2 that in both cases the CC applies human rights contained
in the Bill of Rights to justify the conclusion that the crime of rape was committed by
police officers during the course and within the scope of their employment. The role
which these rights play in expanding the state’s delictual liability for harm arising from
crime was critically evaluated in that chapter and will not be repeated here. It is
sufficient to reiterate that the reasoning adopted in those cases, especially insofar as
the application of human rights, is arguably contentious.
It is therefore proposed that, instead of relying on the Constitution to achieve the

judicial expansion of the state’s delictual liability, it may rather be used to justify the
establishment of a compensation scheme of general application, enabling the victims
of harm to receive compensation without having to litigate and without having to

77 See also KPMG Too costly to ignore – the economic impact of gender-based violence in South Africa
(2014) 2 which states that “the economic impact of that violence is between at least R28.4 billion and
R42.4 billion for the year 2012/2013, representing 0.9% and 1.3% of GDP respectively.”
78 2005 (6) SA 419 (CC).
79 2012 (1) SA 536 (CC).
209
expose future litigants to the potential uncertainty that may accompany the
constitutional development of the law of delict. 80
In doing so, the Constitution would not be given a lesser role to play with the
development of the law of delict. Rather, it will continue to shape the law insofar as it
could potentially justify the introduction of a statutory compensation fund specifically
aimed at compensating crime victims. However, it will do so in a manner that is
arguably less confined and arbitrary and which may ultimately provide compensation
to a greater number of crime victims.
4.2.3.3 Evidentiary problems with applying the common-law requirement of

fault
In chapter 3 it was explained how the common-law requirement to prove fault (in the
form of negligence) may present evidentiary problems to the plaintiff when instituting
a delictual claim for harm arising from crime. 81 This requirement may in some
instances place a burden on victims of harm that is very difficult to satisfy, thereby
rendering them without compensation. As a result, this consideration has justified the
legislative development of the law of delict in a variety of contexts, notably harm
resulting from defective consumer products, workplace-related injuries and diseases
and motor vehicle accidents. 82
Some of the difficulties experienced by crime victims in proving fault (in the form of
negligence) to establish a delictual claim against an alleged wrongdoer were
canvassed in paragraph 2.2.2 in chapter 2. The evaluation of the judgments in
Shabalala v Metrorail 83 and Mashongwa v Passenger Rail Agency of South Africa84
indicated that, where a crime victim’s delictual claim against the state is based on so-
called systemic negligence, he may particularly struggle to prove that the harm he
suffered, if foreseeable, was indeed preventable. The analysis will not be repeated
here and it will suffice to reaffirm that the institution of common-law delictual claims for
harm arising from crime may likely present a formidable evidentiary burden of having
80 See paragraphs 2.2.1.2.4 (a) and 2.2.1.2.4 (c) in chapter 2.

81 Paragraph 3.2.3 in chapter 3.
83 2008 (3) SA 142 (SCA).
84 2016 (3) SA 528 (CC).
210
to prove that the state could and should have undertaken a system of effective and
affordable measures which would have prevented the crime – a challenge which may
very difficult, if not impossible, for most crime victims.
Obviously, it may be argued that, as is the case with the proposed statutory reform of
the law in the context of motor vehicle accidents85 and the COIDA in respect of
occupational injuries and diseases, the establishment of a no-fault based statutory
compensation fund could provide a viable alternative that is also less time-consuming
and costly. Most crime victim compensation funds seek to compensate harm arising
from intentionally-committed violent crimes. 86 As will be indicated in paragraph 5.8 in
chapter 5, these funds do not require crime victims to prove intention in the same way
that a victim would have to prove it (on a balance of probabilities) to satisfy the fault
requirement for delictual liability, or in the manner in which the state would have to
prove this element (beyond reasonable doubt) for the purposes of the criminal law.
Instead, victims are typically asked to place enough information in front of the
administrative entity responsible for handling the statutory claim (as well as the police)
so as to allow them to conclude that, on a balance of probabilities, the person was
indeed a victim of a violent crime, i.e. that the victim’s harm arose from an intentionally-
committed crime. 87
For example, a rape victim would not have to prove that the perpetrator of the crime
had the requisite intention to cause her harm, but merely that harm had been suffered
as a result of being raped. Conceivably, this may be easier for the crime victim than
what it would otherwise have been to prove all of the elements of delictual liability in a
civil trial. The reason for this is that, at the very least, it is not necessary to find the
perpetrator and prove fault for the purposes of delictual liability. Similarly, it would also
85 See the discussion of the proposed Road Accident Benefit Scheme Bill of 2014 in paragraph 3.2.1.2
in chapter 3.
86 See paragraph 5.8 in chapter 5.
211
be easier than what it would be for the state to prove, beyond a reasonable doubt, that
the perpetrator had the requisite intention to rape the victim of crime.
4.2.3.4 Avoiding legal unpredictability and promoting legal certainty
It may be recalled that, in chapter 2 it was argued that the judicial expansion of state
delictual liability for crimes that were intentionally caused by state employees may
produce arbitrary outcomes. 88 As argued there, it is conceivable that this development
may expose future litigants to an element of unpredictability and thereby undermine
the constitutional principle of the rule of law, which demands not only that everyone
should be treated equally under the law, but also that future litigants should not be
taken by surprise by any uncertainty or vagueness regarding specific aspects of the
law of delict. In this regard, Gardner’s argument is worth quoting in full: 89
“The ideal of the rule of law is the ideal according to which the law should be capable of guiding
those who are subject to it. People should not be ambushed by the law; it should be possible for
them reliably to anticipate the legal consequences of their actions and reliably to obtain or to
avoid those consequences by following the law. So understood, the ideal sets a wide range of
disparate standards for all legal systems to live up to. The ones that mainly concern us here are
standards for legal norms to live up to. Legal norms should not, according to the ideal of the rule
of law, be secret, retroactive, unclear, impossible to conform to, or forever in a state of flux; and
particular legal norms (rulings) should be applications of general legal norms (rules).”
If future litigants are uncertain about the application of a foundational legal rule, they
are likely to be taken by surprise which, in turn, will result in unnecessary litigation with
the corresponding financial losses and time wastage. This line of development not
only introduces ambiguity regarding legal doctrine, but consequently diminishes future
litigants’ right to access to justice.
It is proposed that the establishment of a statutory compensation fund could provide

a “clearer ‘road map’ towards obtaining suitable redress”90 in the context of harm
arising from crime. This could be done by enacting a specific statute that clearly
stipulates the eligibility criteria for instituting a claim against a compensation fund, in
much the same way as the RAF Act and the COIDA has done.
88 See paragraph 2.2.1.2.4 (a) in chapter 2 above.

89Gardner “Some Rule-of-Law Anxieties About Strict Liability in Private Law” in LM Austin & D Klimchuk
(eds) Private Law and the Rule of Law (2014) 207-224 211.
90 Scottish Government Social Research No-Fault Compensation Schemes For Medical Injury: A
Review (2010) 9.
212
4.2.3.5 Higher compensation and lower transaction costs
One of the main arguments employed by the proponents of compensation schemes

generally is that the law of delict provides a time-consuming, expensive and
cumbersome route by which victims of harm may be compensated through the civil
procedure system. 91 As argued in chapter 3, the civil procedural system is
accompanied by high legal transaction costs 92 and provides a significant barrier to
access to justice, especially in a country where the majority of people cannot afford
the services of legal practitioners. 93
As an alternative to the civil procedure system, sections 297 and 300 of the Criminal
Procedure Act provide procedural assistance in obtaining compensation or restitution
from the perpetrator. However, as was argued in chapter 2, the Act affords very little
support in practice. 94 The SALRC Report recorded that, at the time of writing that
report, only 5,4% of crimes reported to the police resulted in a conviction, which
indicates the practical insignificance of the statutory mechanisms discussed in chapter
2. 95
Further, as was mentioned earlier, even if a crime is reported to the police and
culminates in a successful prosecution and sentencing, the majority of accused
persons are unlikely to have the means to compensate their victims, rendering the
compensatory provisions under the Act without much of a practical effect. 96
Ultimately, this means that the majority of South African crime victims are left un- or
undercompensated for the harm which they have suffered as a result of crime. 97
Against this background, it may be argued that the establishment of a statutory
91 Cane Atiyah’s Accidents (2006) 461-499; Deakin et al Tort Law 51-59; Hedley “Tort and Personal
Injuries, 1850 to the Present” in Tort Law and the Legislature 249.
92 For example, costs relating to investigating of claims and costs relating to litigation – see Deakin et
al Tort Law 53. See also paragraph 3.3.1 in chapter 3.

95 SALRC A Compensation Fund for Victims of Crime 18, 281-282; Miers (2014) International Review
of Victimology 148-154.
97 For a comparative perspective see S Shapiro “Overcoming Under-Compensation and Under-
Deterrence in Intentional Tort Cases: Are Statutory Multiple Damages the Best Remedy?” (2011) 62 (2)
Mercer Law Review 449 449-499; M Faure et al Tort Law and Economics (2009) 14.
213
compensation fund would be a practical manner to improve on these shortcomings in

the same way that, for example, the COIDA fund provides quicker and cheaper access
to compensation to victims of occupational injuries and diseases. 98
Furthermore, seeking compensation from a statutory fund may not only increase
efficiency in terms of both the time and costs spent on compensating crime victims,
but it may also result in the reduction of the right to take legal action in the courts, thus
lessening the cost and administrative burden on the courts and interested parties.
As referred to in chapters 2 and 3, it should be kept in mind that the overwhelming

majority of delictual claims based on harm arising from crime are instituted by crime
victims against some or other organ of the state, which is in a stronger financial
position to compensate harm when compared to impecunious perpetrators. As is
illustrated below, if the state chooses to defend its employees’ conduct, it may very
likely have severe financial consequences for the state’s resources.
In this regard we may take note of a report regarding the extent and impact of civil
claims against the SAPS, in which it is stated that, in recent years, the SAPS have
“reported a substantial annual increase in civil claims filed for damages as a result of
actions or omissions by its officials, and an even larger increase in claims pending.
The 2014/2015 SAPS annual report showed that pending claims stood at over R26
billion, which is equivalent to over a third of the SAPS budget.” 99 The report alleges
that between 2007/08 and 2014/15, “claims made annually against the SAPS
increased by 533% if considering the original rand valued, or 313% if adjusted to the
same rand value”. 100 Lastly, the report records that, in a parliamentary reply, the
Minister of Police indicated that “just under R570 million had been spent by the SAPS
on legal costs relating to civil claims between 2011/12 and 2013/14.” 101
Dereymaeker’s report alleges that the “principal reason for the increasing pending
claims is the length of court proceedings”, 102 which, as indicated in chapter 3, are
98 See the reasonably effective compensation of injured and diseased employees: Department of Labor
The Annual Report of the Compensation Fund 2014/2015 (2015) 11, 21-35.
99 G Dereymaeker “Making sense of the numbers: civil claims against the SAPS” (2015) SA Crime
Quarterly (54) 29 29.

100 31.
101 34.
102 32.
214
cumbersome and expensive. Without going into any further detail, it is conceivable
that the institution of civil claims against the state has significant financial implications
on the financial resources of the SAPS. In turn, this may significantly prejudice the
operation of the SAPS and their ability to effectively prevent crime and promote safety
and security, thereby potentially resulting in further claims being instituted and an even
greater need for victim compensation.
The establishment of a statutory compensation fund may potentially result in limiting

the state’s exposure to protracted litigation, thereby allowing for state funds to be spent
on resources and enabling the state to combat the risk of crime more effectively, e.g.
by employing more police officers, purchasing more police vehicles, etc. This, in turn,
may decrease the likelihood of harm manifesting through the culpable conduct of the
state’s employees. 103
It may be noted that if the proposed fund will be funded by using monies allocated to
the budget of the SAPS, the latter would arguably have less financial resources
available to combat crime and to promote safety and security, thereby undermining
the previous argument. However, in this regard, it should be noted that “[i]n general,
the bulk of funds for compensation schemes internationally are sourced through the
relevant budgetary authority at national, state/provincial or local level.” It is therefore
also proposed that, if the South African legislature elect to enact a crime victim
compensation scheme, it should be funded by monies received from the national
budget and not by using the funds available to the SAPS for the purposes of promoting
safety and security. After all, crime victim compensation is not the responsibility of the
SAPS and bestowing on it such a financial onerous burden, could potentially
undermine the national crime prevention strategy.
4.2.3.6 Improving the status of the criminal justice system
The discussion in paragraphs 4.2.3.1 to 4.2.3.5 illustrates that the policy

considerations that have justified the legislative reform of the law relating to motor
vehicle accidents, occupational injuries and diseases and defective consumer
products may potentially also justify legislative reform of the law of delict in relation to
103 See SALRC A Compensation Fund for Victims of Crime 119. See further paragraph 4.2.4.1 below.
215
harm arising from crime. In this section, attention is given to additional considerations
that further serve to justify the proposal.
The SALRC Report records that crime victims have “certain emotional and practical
needs, including trauma counselling, advice and referral, information on court
procedure, and compensation.” 104 Furthermore, it notes that, if these needs are not
met, and “the victim’s position in the criminal justice system is not drastically reformed,
it will further contribute to [a] legitimacy crisis of the criminal justice system in South
Africa.” 105
Therefore, another motivation for the legislature’s interference with the status quo is
that it could contribute towards addressing the concern highlighted in the SALRC
Report insofar as it will ensure that crime victims may receive some form of
compensation. After all, as the report argues, “a compensation scheme could build
confidence in the criminal justice system by demonstrating that it is a system that is
sensitive to the needs of victims. This could encourage victims to form a partnership
with the State to combat crime and would clearly enhance reporting rates.” 106
It is therefore submitted that the establishment of a statutory compensation fund for

crime victims will enhance the legitimacy and status of the criminal justice system. This
has also been a reason used to justify the establishment of similar funds in other
jurisdictions. 107
Furthermore, as was stated above, the moral duty rationale, broadly speaking, entails
that the state is morally obligated to assist crime victims in some way, e.g. by
compensating them for the harm they have suffered. In the process of conducting its
research, the SALRC maintained that this argument is: 108
“commensurate with the victim empowerment approach, which stresses that those victimised
by violent crime should be treated with dignity and assisted in whatever way possible. In this
respect, comprehensive victim empowerment would include not only assistance through the
provision of service and assistance, but, in some cases, financial compensation for losses
endured.”
104 SALRC A Compensation Fund for Victims of Crime (2004) 27.

105 310: “At the very least, compensation has to be seen as a complementary component of victim
support that is vital to ensuring the efficacy of the whole criminal justice system.”
106 281.
107 SALRC A Compensation Fund for Victims of Crime 308-311; Burns Criminal Injuries Compensation
120-129.
216
Providing more victims with compensation, in a quick and relatively cost-efficient

manner presents a practical way in which crime victims may be assisted by the state,
contributing thereby to the notion of victim empowerment. 109
4.2.4 Considerations that potentially count against a statutory compensation

scheme
4.2.4.1 Financial considerations that relate to the establishment of a statutory

This section notes the financial concern related to the establishment of a statutory
compensation fund for crime victims and will attempt to determine whether there are
convincing reasons why the SALRC’s final recommendation against the establishment
of a statutory compensation fund for the victims of crime should be reconsidered. For
the sake of clarity it may be noted at the outset that, as the conclusion of this section
emphasises, it is not yet clear whether or not the establishment of a statutory crime
victim compensation scheme is affordable or not and this section should not be
understood as making a conclusive statement in this regard.
In its report, the SALRC recorded the concern of the National Council of Women of
South Africa who recognised that a state-funded compensation scheme for crime
victims seems “ideal”, 110 but argued that the potential funding of such a scheme
through public taxation would cast a “further burden on the taxpayer” 111 and that it
should therefore be avoided. Similarly, the “fiscal constraints”112 led the Lawyers for
Human Rights to state its reservations about a potential scheme because its
establishment would mean “that the amounts paid would have to be limited.”113 They
further argued that a “system which would work like the Workmen’s Compensation
Fund, where it takes years for the matter to be set down for a hearing, will only
exacerbate the frustration of victims.” 114
109 285-286, 308-310, 333.

110 159.
111 159.
112 161.
113 161.
114 161.
217
The commission also referred to the argument that, although compensation for harm
that results from a rape or violent robbery makes “moral sense, [it is] difficult to justify
in a context of limited resources, where poverty alleviation, combating Aids and
providing employment all demand increased resourcing.” 115 For these reasons, the
SALRC concluded that, at the time, the scheme was “something South Africa cannot
afford.”116
For the following reasons it is argued that the SALRC’s final recommendation against
the establishment of a statutory compensation fund for the victims of crime should be
reconsidered.
First, as the SALRC itself emphasises, the determination of the financial implications
regarding the establishment of a statutory compensation fund proved to be extremely
difficult, since “an accurate estimate depended on a number of variables, too difficult
to verify or to define with certainty”. 117 We should further note that the attempt to
determine the cost implications was based on “[e]stimates and assumptions”118 and
done “in spite of much of the necessary data being unavailable.” 119 Therefore, any
conclusions reached about affordability would be premature until an authoritative
financial analysis has been completed on this issue.
It should also be remembered that the cost implications of violent crime to the state
are “enormous in terms of the loss of productive human resources and other costs
such as providing health care for victims.” 120 Therefore, it is arguable that the payment
of compensation to a crime victim may allow them to contribute towards the generation
of wealth by re-entering the market-place.
In addition, as was pointed out above, the cost implications of the current judicial
expansion of the state’s vicarious liability in delict is significant and could provide fresh
impetus for a reconsideration of the financial implications of establishing a
compensation fund for crime victims.
115 188.
116 29.
117 2.
118 118.
119 118.
218
The conclusion reached in the SALRC Report that a compensation fund is financially
unaffordable was based on a model fund which sought to provide full compensation
for victims of violent crime, which included murder, attempted murder, rape, assault
with the intent do grievous bodily harm, indecent assault and aggravated robbery. 121
The commission determined that, at the time, it would require R4,7 billion to sustain
such a fund. 122
However, the SALRC did not adequately investigate the possibility of lower levels of
compensation, e.g. limiting the type of injuries or harm in respect of which a statutory
claim may be instituted against the fund or limiting the amount of compensation
claimable against such a fund. It also failed to determine whether it would be financially
viable to adopt more limited eligibility criteria, e.g. recognising only those claims
brought by victims of intentionally-committed violent crimes who have suffered serious
bodily or psychiatric injuries. Indeed, considering the fact that most crime victim
compensation funds provide a capped amount of compensation and generally only in
respect of intentionally-committed violent crimes, this may have a significant impact
on the affordability of the proposed fund.
Recent amendments introduced by the Road Accident Fund Amendment Act 19 of

2005 provides an example of where the legislature has intervened to limit the amount
of compensation payable by a statutory compensation fund. The amendments
introduced a limitation with regards to claims for loss of income and a dependant’s
loss of support arising from the bodily injury or death of a victim of a motor accident. 123
It also abolished the victim’s common-law right to claim compensation from a
wrongdoer for losses which are not compensable under the RAF Act. 124 In Law Society
of South Africa v Minister for Transport, 125 the CC rejected the applicant’s
constitutional challenge in respect of the above amendments and remarked: 126
“It became necessary to amend the legislation in order to give effect to the constitutional
requirements regarding (a) expenditure which is efficient, effective and economical; (b)
prohibition of irrational differentiation; and (c) reasonable access to social security and health
121 SALRC A Compensation Fund for Victims of Crime 111-114: it culminates to an amount of R4.7
billion, calculated for the year 1998.

122 Taking inflation into account, this amounts to approximately R10 billion in 2017: see Inflation
Calculation available at <http://www.inflationcalc.co.za/> (accessed on 26 June 2017).

123 See section 17(4)(c) of the RAF Act. See further paragraphs 5.5 and 5.6 in chapter 5.
124 See section 21 of the RAF Act.
125 2011 (1) SA 400 (CC).
126 Paras 44-45.
219
care [... while] the economic viability of the Fund and the removal of unfair differentiation were
important goals, the ultimate vision is that the new system of compensation for road accident
victims must be integrated into a comprehensive social security system that offers life, disability
and health insurance cover for all accidents and diseases. [The Minister of Transport]
acknowledges that a fault-based common-law system of compensation for road accident victims
would be at odds with a comprehensive social security model.”
Against this background, it is arguable that the proposed crime victim compensation
fund could be more cost-efficient than the current liability system, which continues to
expand insofar as the state is concerned. However, as emphasised in the opening
paragraph of this section, the affordability of the proposed scheme is a matter for later
determination and the previous statement about the fund’s cost-efficiency is therefore
not conclusive, but merely an opinion based on the reasons set out in this section.
Lastly, if the legislature were to enact the proposed crime victim compensation
scheme, it is proposed that the fund would be well-advised to approach the Criminal
Assets Recovery Account, as set up under chapter 7 of the Prevention of Organised
Crime Act 121 of 1998, with a request to make available monies to the scheme for the
purpose of funding crime victim compensation. 127
From the above, we may conclude that it has not yet been clearly established that the
establishment of a fund will be unaffordable. However, it has also not been proven that
the creation of such a fund will be affordable. As the SALRC Report indicates, without
a thorough financial investigation into this matter, it is not possible to indicate with
sufficient finality whether the fund may be a viable option in the current financial
climate. Such financial analysis falls outside the scope of this dissertation, but further
investigation into this matter in future would be a worthwhile project in its own right.
For the sake of clarity, it may be emphasised that the aim here is not to provide an
economic analysis of the cost implications of establishing a statutory compensation
fund, but, rather, to determine whether there are convincing policy considerations that
may justify the enactment of a crime victim compensation scheme.
127 See further paragraph 2.3.3 in chapter 2.

220
4.2.4.2 Administrative problems with the establishment of a statutory

The SALRC Report recorded several problems with the administration of a statutory
compensation fund that weigh against the proposal to establish such a fund for crime
victims. The commission notes that, given “the current infrastructural situation in South
Africa’s public service, it is likely that the establishment of a compensation scheme
could be hampered by the lack of effective inter-sectoral co-operation and co-
ordination, as well as by the underdeveloped administrative systems in some
government departments.” 128
Based on the protracted nature and difficulties involved in handling “18 000 Truth and
Reconciliation urgent reparation claims”, 129 the report states that “there may be little
realistic prospect for setting up a new bureaucracy with the purpose of compensating
thousands of potential victims.” 130 Highlighting fraudulent claims and ineffective
reporting of crimes as further reasons weighing against the success of a statutory
compensation fund, the SALRC Report concludes that the necessary prerequisites of
the effective and efficient administration of such a fund is absent. 131
The commission also documented its concerns that the creation of a statutory
compensation scheme may “encourage criminals to further their actions and it may
lead to fraud and corruption by the community with a resultant increase in workload
on the functionaries in the criminal justice system.” 132 Although the compensation
scheme for crime victims would find support in principle, “it would of necessity lead to
actions being instituted on false charges for the sole purpose of financial gain.” 133 It is
argued that it would be “very difficult to identify such cases prior to the eventual hearing

129 354.
130 355..
131 354-355.
132 SALRC A Compensation Fund for Victims of Crime 160. See also Brooks (1976) Tulsa Law Journal
501.
221
and it would have a definite effect on court roles [sic] and could well lead to a significant
number of additional courts having to be established to handle the extra work.” 134
Notwithstanding the above, this dissertation argues that the SALRC’s conclusion on
this matter does not by itself dictate against the creation of a statutory compensation
fund for crime victims. Brooks points out that “establishing an efficient machinery of
investigation” 135 and “stringent requirements of proof” 136 could go some way in
addressing the concerns raised above. Finally, it is worth remembering that: 137
“[It is] not as though governments have never undertaken programs which involved monetary
payments upon a showing of injury. There are multitudes of activities where the potential for fraud
exists. It is most desirable to prevent fraud and to punish fraud when it occurs, but this has been
the business of government for centuries. It is germane to note that problems of fraud or attempted
fraud have occasioned no mention of difficulties for those jurisdictions that presently administer
crime compensation programs.”
4.2.4.3 Concerns that the establishment of a statutory compensation fund

raises about the function of the law of delict
It is generally agreed that the law of delict is primarily concerned with the
compensation of harm. 138 Nonetheless, compensation might be the primary function,
but it is “not the sole function of the law of delict.” 139 Other functions which it is said to
fulfil include the protection of certain interests, the promotion of social order and
cohesion, the education and reinforcement of values, providing socially-acceptable
compromises between conflicting moral views, deterring the injurer from behaving
similarly in future and reallocating and spreading losses. 140 Arguably, the law of delict,
134 SALRC A Compensation Fund for Victims of Crime 161. See also Scott (1967) William and Mary
Law Review 286-287.
135 Brooks (1976) Tulsa Law Journal 502. See also SALRC A Compensation Fund for Victims of Crime
160.
136 Brooks (1976) Tulsa Law Journal 502.
137 502.
Africa 2 ed (2012) 8-11.
140 8-11.
222
as a fault-based system of liability, is founded on the central moral notion of personal

responsibility.
The question that requires answering is whether the establishment of a crime victim
compensation fund would undermine any of these functions. From a comparative
perspective, most of the attention that focus on this question concentrate specifically
on whether a compensation scheme might undermine the function of deterrence or
the notion of personal responsibility. 141 This dissertation will also focus on these two
issues.
Regarding the potential undermining of personal responsibility, the following should

be considered. First, as described in chapter 2, without a statutory compensation fund,
a crime victim is entitled to institute a delictual claim against the criminal or, if the harm
was wrongfully caused by the culpable conduct of a state employee, a state organ
may be held vicariously liable. In the case of the former, research and practical
experience provides evidence that delictual claims are seldom successfully instituted
because the criminal is not in a position to pay damages. 142 In other words, in these
circumstances the law of delict is incapable of ensuring that criminals are held
personally responsible for their wrongdoing.
If a crime victim decides to rather institute his delictual claim against the state, and
where he succeeds in holding the state vicariously liable, the criminal is also not held
personally responsible for the harm that he caused to the victim. 143 In this type of case,
the tax-payer ultimately provides the funds for the payment of damages by the state.
141 See also Scott (1967) William and Mary Law Review 281.
142 See paragraph 2.2 in chapter 2. From a comparative perspective, see FP Hubbard “The Nature and
Impact of the ‘Tort Reform’ Movement” (2006) Hofstra Law Review (35) 437 441: “[T]he system does
not provide compensation where a wrongdoer has no insurance or no personal assets to pay
compensation, or where the amount of loss is too small to be worth the cost of litigation. Even where a
wrongdoer has assets or insurance, the tort system will not provide recovery for injury unless the victim
brings a claim.”
143 This statement accurately reflects the legal position under South African law. However, it has also
been noted in foreign jurisdictions. For example, J Schwarz “How Governments Pay: Lawsuits, Budgets,
and Police Reform” (2016) UCLA L. Rev. (63) 1144 1147 states: “In prior research, I found that police
officers in eighty-one law enforcement agencies across the country are virtually always indemnified.
Officers personally satisfied just 0.02 percent of the more than $735 million awarded to plaintiffs over a
six-year period in suits alleging constitutional violations and corresponding state tort claims, including
assault, battery, false imprisonment, and intentional infliction of emotional distress. Officers were even
more likely to be indemnified in cases involving auto accidents, property damage, and employment-
related disputes. Accordingly, when a plaintiff sues a police officer, any amount she recovers is almost
certain not to come from the pocket of that officer.”
223
Again, it may be argued that, in this situation, the law of delict does little to give effect
to the notion of personal responsibility for causing harm.
Against this background it is arguable that the establishment of a statutory

compensation fund would conceivably do little to undermine the principle of personal
responsibility.
The argument that, unlike a compensation fund, delictual liability will promote socially
desirable behaviour and deter dangerous conduct may be summarised as follows: 144
“It is first assumed that, absent tort law [or the law of delict], people would selfishly pursue their
own interests, putting their personal desires ahead of the safety of others. As a result, people
(and property) would be unreasonably damaged. By contrast, since tort law [or the law of delict]
threatens people with having to pay for the harms they cause, it is seen to force them to take the
interests of others into account. In other words, it is assumed that in order to avoid tort liability [or
delictual liability], people will alter their behavior in a socially desirable, less injury-producing way.”
In New Zealand it was argued that the establishment of a general accident

compensation fund for harm arising from personal injuries and the abolishment of tort
actions in respect of personal injuries would produce an increase in the number and
severity of accidents giving rise to personal injury. However, in a study dated 1985,
Brown found that the available statistics at the time suggested the opposite, namely
that “no significant increase in motoring activity […] occurred; and (2) no noticeable
increase in accident rates.” 145
More recently, Schuck pointed out that “the empirical evidence documenting the effect
of liability rules and compensation practices on deterrence remains inconclusive [and
that all] systems, therefore, have had to adopt auxiliary measures - information,
education, administrative regulation, instinct for self-preservation, technology, market
effects (including reputation), professional discipline, and other behavioral influences
- to augment the call for accident prevention.” 146
In a study conducted by Cardi, Penfield and Yoon, 147 the authors refer to the attention
that has been given to the potential deterrent effects of the common law of tort and set
144 Sugarman (1985) California Law Review 560. See also C Brown, “Deterrence in Tort and No-Fault:
The New Zealand Experience” (1985) California Law Review 73(3) 976-1002.
145 Brown (1985) California Law Review 1002.
146 P Schuck, “Tort Reform, Kiwi-Style” (2008) 27 Yale Law and Policy Review 187 200.
147 W Cardi, R Penfield and AH Yoon “Does Tort Law Deter?” (2011) Wake Forest University Legal
Studies Paper No. 1851383 1 1. See also MJ Moore & WK Viscusi Compensation Mechanisms For Job
224
out to test the validity of the assumption that tort liability deters tortious conduct. They
explain that the “study’s most surprising and provocative finding” 148 is the failure of tort
liability to deter. Similarly, McEwin notes: 149 “Accident law does not deter, it is argued,
because any deterrent effect is swamped by imperfect insurance that does not
properly penalize careless or unsafe behaviour […] Instead, deterrence is better
achieved by safety regulation. No-fault schemes re-allocate costs away from lawyers
to accident.”
The potential of delictual liability to deter people from risky conduct is premised on the
assumption that people behave rationally, i.e. that they know what the legal
consequences of their risky conduct would be and, further, that they consider such
consequences (delictual liability) prior to engaging in their conduct. As Cardi, Penfield
and Yoon demonstrate, there is little evidence to substantiate such an assumption. 150
There are further intuitive reasons to question the law of delict’s ability to act as
deterrent: “if negligent behavior consists of an actor’s accidental disregard of moral
imperatives to take reasonable care, perhaps legal incentives are superfluous.
Moreover, even if people might be influenced by threat of tort liability [or delictual
liability] were they aware of the law’s mandates, evidence shows that people are
typically ignorant of the law – and even if aware of law’s content, people commonly
discount the chance of being held liable.” 151
Fleming refers to a further convincing reason why deterrence plays little role in tort law
(or again, the law of delict): 152
“[T]he admonitory effect of an adverse judgment is today largely diffused by liability insurance
which protects the injurer from having to pay the accident cost and instead distributes it among
a large pool of premium payers and thereby socializes the loss. In many countries the victim no
longer even in form addresses his claim to the injurer but proceeds directly against the latter's
insurance carrier or compensation fund, thereby eliminating even the symbolic tokens of
individual blame.”
Risks (1990) 133; JR Chelius, “Liability for Industrial Accidents: A Comparison of Negligence and Strict
Liability Systems” (1976) J. Leg. Stud. (5) 293 303-306.
148 Cardi, Penfield & Yoon (2011) Wake Forest University Legal Studies Paper No. 1851383 24.
149 RI McEwin “No-fault compensation schemes” in Encyclopedia of Law and Economics (2000) 736-
737. See also Fleming “The Role of Negligence in Modern Tort Law” (1967) 52 Virginia Law Review
815 823.
150 Cardi, Penfield & Yoon (2011) Wake Forest University Legal Studies Paper No. 1851383 3-4.
151 3-4.
152 Fleming “Is There a Future for Tort?” (1984) 44 Louisiana Law Review 1193 1197 (references
omitted).
225
From the above, we may conclude that deterrence plays a marginal role as a function
of the law of delict. In reality, it seems like “government regulation, criminal sanctions
and ordinary economic pressures”153 would be the best way to educate and deter.
Therefore, it is suggested that the question whether deterrence would be undermined
by the establishment of a statutory compensation fund for crime victims “should play
a minor role in determining whether to abolish or modify tort law and replace it with a
no-fault compensation system.” 154
In conclusion, in this section it has therefore been argued that, in principle, the
establishment of a statutory compensation fund could be justified. Assuming that the
proposed statutory intervention is justifiable in principle, a final issue will be given
attention, namely whether the potential statutory reform of the law of delict should take
place by adapting existing statutes or policies or whether new, stand-alone legislation
should be enacted.
4.3 Should the statutory reform of the law relating to crime victim
compensation take place by adapting existing statutes or policies or
should a new, stand-alone statute be enacted?
Most of the foreign jurisdictions that have elected to develop the law relating to the
compensation of crime victims have done so through the establishment of a statutory
compensation fund for crime victims. 155 These funds have generally been enacted in
new, stand-alone statutes. Of course, it does not automatically follow that the same
solution should be adopted for the South African legal system. The following section
involves a discussion on what may be the best strategy for the proposed statutory
reform of the South African law relating to crime victim compensation.
153 1198: “Regulations can play an educational role in prescribing clear procedures designed to avoid
accidents. Negligence law by contrast condemns people after it is too late. Also, while regulatory
standards are established by experts, tort law leaves to inexpert juries or judges the bewildering task
of resolving disputes between partisan expert witnesses. While tort law has come to take advantage of
statutory standards by sometimes although quite erratically) treating their violation as fault without more
(per se), it is unwilling to treat compliance with prescribed standards as conclusively.”
154 Brown (1985) California Law Review 979.
155 See Greer Compensating Crime Victims for an overview of the European jurisdictions that have
enacted state-funded compensation schemes for crime victims: Austria, Belgium, Denmark, Finland,
France, Germany, Greece, Ireland, Italy, the Netherlands, Norway, Portugal, Spain, Sweden, the United
Kingdom and Northern Ireland. Other jurisdictions that followed this route include the United States of
America and certain states and territories in Australia and Canada, respectively.
226
4.3.1 The existing policies and programmes that have a bearing on the position
of crime victims
In response to the serious threat imposed by significant levels of violent crime, the
National Crime Prevention Strategy (“NCPS”), which articulated a new approach to
the issue of crime and the position of crime victims, was approved in 1996. The NCPS
may be described as a strategic policy document rather than an operational
programme 156 and its adoption displays the shift in the government’s general response
to the increasing levels of crime from a retributive justice approach 157 to one that is
aimed at achieving restorative justice. 158
The NCPS identified the establishment of the Victim Empowerment Programme

(“VEP”) as one of the key programmes aimed at making the criminal justice system
more “efficient and effective”, 159 deterring future criminals and providing a source of
relief and support to crime victims. 160 The Department of Social Development (“DSD”)
describes the VEP as follows: 161
“It is a multi-faceted and inter-sectoral [programme…] based on a partnership between

national, provincial and local government departments and civil society organisations,
volunteers, business, religious sector, institutions of higher learning and research institutions.
The programme focuses on promoting a victim centred-approach to crime prevention.”
The VEP identifies a wide range of objectives; these include: enhancing victim
empowerment, improving the access of disempowered groups to the criminal justice
system, redesigning the criminal justice system to empower victims, providing a
greater and more meaningful role for victims in the criminal justice system, improving
156 AM Singh “Changing the soul of the nation? South Africa’s National Crime Prevention Strategy”
(1997) 2 The British Criminology Conference: Selected Proceedings 1 1.
157 In broad terms, retributive justice theories may be regarded as centred on the notion that “persons
who have caused harm should themselves suffer harm”. See J Burchell Principles of Criminal law 3 ed
(2005) 69.
158 SALRC A Compensation Fund for Victims of Crime 215-219; Department of Social Development
(DSD) Integrated Victim Empowerment Policy (4th draft) (2007) 3. Broadly speaking, this approach may
be described as involving “an essentially non-punitive resolution of disputes arising from the infliction
of harm, through a process involving the victim, the offender and members of the community. The
process is directed at restoring the parties to the condition that was disturbed by the criminal conduct”.
See Burchell Principles of Criminal law 7.
159 South African Government “National Crime Prevention Strategy: A Summary” available at
<http://www.gov.za/documents/national-CRIME-prevention-strategy-summary#6> (accessed on 7
June 2016).
160 DSD Victim Empowerment Policy (2007) 17.
161 17.
227
the service delivered by the criminal justice process to victims of crime, and dealing
with the damage arising from criminal acts by providing remedial interventions for
victims. 162
In 1998 the Department of Justice developed the first draft of the Service Charter for
Victims of Crime in South Africa (“Victim Charter”), which was based on international
standards of victims’ rights and focused on promoting justice for crime victims. 163 The
Victim Charter is regarded as constituting part of the government’s holistic policy on
victim empowerment and is aimed at reducing incidents of secondary victimisation,
experienced by victims within the criminal justice system. 164
The Victim Charter states that the following rights of crime victims, “as contained in
the Constitution and relevant legislation,” 165 will be upheld during their interaction with
the criminal justice system: the right to be treated with fairness, respect and dignity,
the right to offer information and to be heard, the right to receive and offer information,
the right to legal advice and timely processing of criminal proceedings following the
arrest of an accused, within reasonable bounds and the right to protection. 166
In terms of the right to compensation, which is defined as “an amount of money that a
criminal court awards the victim who has suffered loss or damage to property,
including money, as a result of a criminal act or omission by the person convicted of
committing the crime”, 167 the charter reaffirms crime victims’ current rights under the
Criminal Procedure Act: “You can request to be present at court on the date of
sentencing of the accused and request the prosecutor to apply to court for a
compensation order in terms of section 297 and 300 of the Criminal Procedure Act”. 168
Similarly, the charter notes the crime victim’s right to restitution, which refers to the
right granted to crime victims in terms of section 301 of the Act, i.e. those cases where
“the court, after conviction, orders the accused to return your property or goods that
have been taken from you unlawfully, or to repair the property or goods that have been

163 Department of Justice and Constitutional Development (“DJCD”) Service Charter of Victims of Crime
in South Africa (1998) 3.
164 DJCD Victim Charter 4-5.
165 6.
166 6-9.
167 8.
168 8.
228
unlawfully damaged, in order to restore the position you were in prior to the
commission of the offence.” 169
Sections 297, 300 and 301 of the Criminal Procedure Act were discussed in
paragraphs 2.3.1-2.3.2 in chapter 2 and for present purposes it will suffice to
emphasise the point that the charter does not envisage further rights for victims in
addition to existing rights under the Criminal Procedure Act and the common law of
delict. 170 Further, as pointed out in chapter 2, the assistance offered by the Act may
be regarded as inadequate in compensating crime victims because, generally, the
perpetrators of criminal activities are not in a financial position to repair the harm which
they have caused their victims. 171
With regard to compensation by way of a “civil action”, 172 the Victim Charter merely
states that this can be instituted against the accused “where the criminal court did not
grant a compensation order”, 173 which will “usually happen where the damages are
not easily quantifiable in financial terms, for example, in the case of psychological
damages or pain and suffering.” 174 Therefore, although reference is made to the crime
victim’s rights to compensation and restitution, it is important to note that it “does not
include a broad right to compensation, i.e. a unilateral right to compensation from the
state if one is a victim of crime. At this stage the right to compensation […] only exists
in so far as the victim has a right to receive [money] from the offender, with the court
having discretion about whether or not to grant a compensation order to this effect.”175
In 1998 the government set out a policy framework for general safety and security in
its White Paper on Safety and Security. In its foreword, the Paper states that “[a]t the
heart of the White Paper lies the challenge of enhancing the transformation of the
police so that they are able to function effectively within the new democracy; and
169 9.
Commonwealth Jurisdictions Unpublished LLD thesis Nelson Mandela Metropolitan University
(2007)148.
171 SALRC A Compensation Fund for Victims of Crime 315. For a comparative perspective see LJ
McQuillan & H Abramyan, “The Tort Law Tax” Wall Street Journal 1 available at
<http://www.wsj.com/articles/SB117496524456750056> (accessed on 2 February 2015); Miers (2014)
20(1) International Review of Victimology 148-154.
172 DJCD Victim Charter 8.
173 8.
174 8.
229
enhancing social crime prevention activities to reduce the occurrence of crime.”176 The
objectives of the 1998 White Paper were to define the strategic priorities to deal with
crime, articulate the roles and responsibilities of various role-players in the safety and
security sphere, clarify the role of the DSS within a constitutional framework and
consider institutional reform of the SAPS. 177 However, it failed to consider the issue of
The NCPS was replaced by the Justice Crime Prevention Strategy (“JCPS”) in 1999,
which intended to further broaden the NCPS’s scope to cover issues beyond the
criminal justice system. 178 The JCPS’s main objectives are to focus the state’s efforts
and resources jointly in addressing the incidents of crime, public disorder,
inefficiencies in the justice system and “all those aspects of society with the most
negative effects on development.” 179
In 2007, the DSD stated that there was no policy that informs, guides, regulates and
co-ordinates the services rendered to victims of crime and violence and which
promotes a common understanding and participation of all relevant state departments
and civil society in victim empowerment initiatives. 180 As a result, it formulated and
published a draft victim empowerment policy aimed at guiding and facilitating the
provision of services to victims of crime. 181 The DSD’s draft policy specifically
emphasised the need to provide a framework to integrate the multi-disciplinary
services offered to crime victims at the time and to co-ordinate future activities and
efforts offered by the state and civil society.
The draft policy identified a variety of stakeholders and service providers that are to
play an important role in empowering victims, 182 but failed to provide any details as to
how these services were to be practically co-ordinated or implemented. It did,
however, provide the basis for a subsequent policy document issued by the DSD in
176 Department of Safety and Security (“DSS”) White Paper on Safety and Security (1998) 2.
177 DSS White Paper on Safety and Security; Civilian Secretariat for Police White Paper on Safety and
Security (2016) 34.
178 DSD Victim Empowerment Policy 5.
179 10.
180 18. This may be seen as part of the government’s “criminal justice system revamp” - see Civilian
Secretariat for Police White Paper on Safety and Security 32.

181 I.e. the DSD Victim Empowerment Policy.
182 22-23.
230
2009, namely the National Policy Guidelines for Victim Empowerment (“Policy
Guidelines”).
The Policy Guidelines criticised the earlier attempts of the police, the judiciary, the
private sector, government and civil society to address victim empowerment as
“arbitrary” 183 and “not prioritised” 184 and stipulates that it failed to provide a “structured
plan to manage and coordinate policy development and implementation.”185 As a
result it sets out to provide: 186
“[A] framework for sound inter-departmental and intesectoral [sic] collaboration and for the
integration of effective institutional arrangements for a multi-pronged approach in managing
victim empowerment [, which it defines as] an approach [that] facilitates the establishment of
partnerships in the victim empowerment sector to effectively address the diverse and sensitive
needs of victims holistically.”
The establishment of Victim Empowerment Management Forums at national,

provincial and local levels that will be tasked with providing “strategic direction to the
programme” is envisaged in the Policy Guidelines. 187 These forums’ functions and
responsibilities are broadly formulated and wide-ranging. 188
The guidelines further refer to certain “core intervention strategies”, 189 which include
the “development of plans for the implementation” 190 of certain policies and legislation.
In this regard, the document refers to the Victim Charter, the Domestic Violence Act
116 of 1998, the Criminal Law (Sexual Offences and Related Matters) Amendment
Act 32 of 2007 and the management protocol and legislation for the management of
victims of human trafficking. 191 However, no mention is made of legislation specifically
aimed at compensating crime victims.
183 DSD Policy Guidelines (2009) 4.

184 4.
185 4.
186 6.
187 13.
188 For example, they include the following: “co-ordination and management”, “providing inter-
departmental solution to challenges”, “ensuring an effective information flow”, “monitoring of VEP
processes”, “sharing of information, for example best practices”, “networking, encouragement and
mutual support” and “other functions as and when appropriate”. Furthermore, they are given a variety
of mandatory managerial responsibilities such as, for example, managing the “development, monitoring
and evaluation of the implementation of a comprehensive, integrated legislative and policy framework
related to the empowerment of victims.” See further DSD Policy Guidelines 14-16.
189 16.
190 16.
191 16.
231
The Policy Guidelines provide a vague indication of how the DSD, which is described
as the “lead department” 192 responsible for ensuring the successful implementation of
the VEP, should go about in formulating, co-ordinating and managing the
comprehensive new VEP. The document reflects the vast range of services, functions
and responsibilities of all the relevant stake-holders, which will not be further discussed
in this dissertation. 193
Lastly, the National Development Plan (“NDP”) was published in 2011 and accepted
by the National Cabinet in 2012. It “proposes an integrated approach to resolving the
root causes of crime that involves an active citizenry as well as inter-related
responsibilities and co-ordinated service delivery from state and non-state actors.” 194
It formulates the following vision for South Africa in respect of safety and security: 195
“In 2030 people living in South Africa feel safe and have no fear of crime. They feel safe at home,
at school and at work, and they enjoy an active community life free of fear. Women can walk
freely in the street and the children can play safely outside. The police service is a well-resourced
professional institution staffed by highly skilled officers who value their works, serve the
community, safeguard lives and property without discrimination, protect the peaceful against
violence, and respect the rights of all to equality and justice.”
The NDP articulates a vision for a safe and secure South Africa, and identifies building
safer communities as central in achieving an integrated and developmental approach
to safety and security, which involves all government departments and tiers of
government. 196
To give effect to this vision, the Civilian Secretariat for Police developed a White Paper
on Safety and Security in 2016 (“White Paper”). 197 The White Paper is the culmination
of a series of policy documentation that seeks to give effect to the vision developed in
the NDP. 198 It reaffirms that it is the collective responsibility of the state and its citizens
to construct safer communities and to ensure that safety and security is “located within
192 18.
193 17-21.
194 Civilian Secretariat for Police White Paper on Safety and Security 30-31.
195 National Planning Commission National Development Plan 349.
196 National Planning Commission National Development Plan 349-361; Civilian Secretariat for Police
White Paper on Safety and Security.

197 Civilian Secretariat for Police White Paper on Safety and Security.
198 For instance, it refers to the National Security Strategy (2012), the Rural Safety Strategy (2010), the
Integrated Social Crime Prevention Strategy (2011), the Community Safety Forums Policy (2011), the
Early Childhood Development Policy (2015), the White Paper on Families (2012) and the Draft
Integrated Urban Development Framework (2015).
232
the broader developmental agenda of government”. 199 The White Paper affirms the
need for “an active citizenry, civil society, and private sector to contribute to the on-
going efforts of government in safety, crime and violence prevention”. 200
It identifies the following objectives. First, to provide an overarching policy for safety,
crime and violence prevention that will be articulated in a clear legislative and
administrative framework to facilitate synergy and alignment of policies on safety and
security. 201 Secondly, to facilitate the creation of a sustainable, well-resourced
implementation and oversight mechanism, which will co-ordinate, monitor, evaluate
and report on implementation of crime prevention priorities across all sectors. 202
The White Paper notes that there has been “an over-reliance on criminal justice
approaches [which] risks [the] prioritisation of increasingly repressive and punitive
responses to crime that are ultimately reactive and limited in their ability to achieve
longer term results.”203 It notes the reactive nature of the criminal justice system and
emphasises that it needs to be “complemented by long-term developmental strategies
to reduce incidents of people in conflict with the law and to increase levels of safety in
communities.” 204 The focus of the White Paper is “crime and violence prevention” 205
and to further this goal, it seeks to intervene in the individual, familial, community and
structural domains in order to build resilience against crime and violence, putting in
place protective measures, implementing broad structural and environmental change
to the South African socio-economic landscape and involving a wide range of stake-
holders to construct and promote safer communities. 206
An evaluation of these policies and programmes is set out in the next section.
199 Civilian Secretariat for Police White Paper on Safety and Security 9.
200 9.
201 7.
202 7.
203 8.
204 8. See also 9-17.
205 9.
206 9.
233
4.3.2 The shortcomings of the existing policies and programmes as well as

further reasons that support the enactment of a stand-alone statute that
deals with the compensation of crime victims
The NCPS, JCPS, the VEP, the Victim Charter, the Policy Guidelines, the NDP and
the White Paper are overly broad with regard to the formulation of their goals. It may
be argued that the various governmental agencies responsible for drafting these
documents have been too ambitious in identifying the wide range of objectives. Not
only do the documents present a multitude of goals to achieve, but their successful
implementation requires that several role-players co-ordinate their isolated attempts
in fulfilling these goals without a clear outline of the procedure for doing so. All in all,
the existing policies and programmes confront the state and other entities with an
overwhelming responsibility that is vaguely formulated and impractical to implement.
It may be said that the existing policy documentation has a single or definite goal,
insofar as it indicates a shift in the government’s approach from retribution to
restorative justice, and it thereby introduced a victim-centred attitude towards the
criminal justice system generally. However, the identification of a shift in the stance
toward the criminal justice system is hardly sufficient to ensure the successful
formulation and implementation of the multitude of goals referred to above.
In pursuit of achieving restorative justice, the policies are, among other things, focused
on empowering victims in a variety of ways. One way in which victims are to be
empowered is apparently by compensating them for the harm they suffer. Accordingly,
the Victim Charter refers to victim’s rights in relation to compensation and restitution.
However, as referred to above, the Charter does not provide crime victims with any
rights other than those which already exist at common law or in legislation.
In its report, the SALRC identified the following concerns with the VEP and Victim
Charter. First, it is argued that victim support service delivery under the policies for
certain groups and in certain areas would remain limited: 207
“The majority of the projects funded by the government are concentrated in the urban, peri-urban
and semi-rural areas; the rural areas still remain under-resourced […] There is a serious gap in
the provision of professional services and those that do exist are based in major cities. Rural and
outlying areas do not have access to such services.”

234
Another problem with the existing policy documentation is that the victim support
services that it envisages fail “to evaluate levels of service delivery” and to define the
standards of the services that are required to be provided. 208 The SALRC correctly
pointed out that this makes it difficult to determine whether existing services are
adequate or not. 209 Related to this point is the significant concern that state service
providers such as the SAPS, social workers and primary health care practitioners are
“expected to include victim empowerment as part of their day-to-day job function, in
addition to their other responsibilities. Most frontline workers are already overstretched
and under-resourced without this additional responsibility.” 210
The SALRC Report also notes that the inter-sectorial co-operation that appears to be
a crucial element of the proposed strategy remains “an ongoing problem”211 and that
an “imbalance exists between various departments in their engagement with providing
victim support services.” 212 We may therefore state that a significant gap persists
between the policy-making on the one hand and the implementation of the various
policies, programmes and strategies on the other hand.
It is arguable that legislative intervention which is more specific in its scope, and which
focuses solely on the compensation of crime victims by establishing a statutory
compensation fund may be a more practicable, albeit less ambitious solution than the
policy documentation referred to above. If the statutory reform of the law of delict is to
follow this route, it may hold the following advantages.
Considering the narrow, focused objective of such a statute, it is conceivable that it

will require considerably fewer stake-holders and participants to implement. In theory,
this will require less co-ordination and correlation between various state departments
and civic organisations. It is therefore probable that the administration and costs
involved in operating a compensation fund may be more achievable in practice than
the implementation of all the objectives identified in the policy documentation.
208 31.
209 31.
210 32.
211 32.
212 32.
235
A more modest objective of enacting a stand-alone statute that concentrates solely on

setting out the provisions relating to a statutory compensation scheme will not require
the SAPS, social workers and primary health care practitioners to include victim
empowerment as part of their daily functions. As such, it will not interfere or impose
an additional burden on any of these entities.
The existing policies and programmes do not provide any practical assistance to crime
victims insofar as the compensation for harm is concerned and a statute aimed at
achieving this specific purpose appears to be the only practical solution to meet this
need.
Further, the following critique of the VEP and Victim Charter that was set out in the
SALRC still remains true and provides a succinct summary of the current policies and
programmes: 213
“[T]he Commission questions the justification for locating the VEP programme in the Department
of Social Services. While the Department can take responsibility for the development of services
to victims of crime, it cannot take full responsibility for an improved deal for victims of crime in the
criminal justice system. Victims of crime are connected to the criminal justice process and they
do not think of themselves as clients of the Department of Social Development. Secondly, in
foreign jurisdictions either the Department of Justice or the prosecution takes responsibility for
victim services. Therefore, in the Commission’s view, building on the VEP programme alone is
not the solution to the problem. Appropriate legislative provisions should be developed to
strengthen existing provisions to ensure a better deal for victims of crime.”
In addition, it may be worth emphasising that a statutory compensation fund may

nevertheless be regarded as constituting a part of the broader objectives of the NCPS,
JCPS and VEP, but falling outside its immediate scope, extent and administration. In
other words, it may still contribute towards the goals identified by these documents in
a practical and achievable manner.
An overview of the policy documentation discussed above reflects a scatter-shot

approach towards solving a multiplicity of crime-related problems. It identifies various
concerns arising from the central issue of a soaring crime rate and the high prevalence
of violent crime. In response, a wide assortment of solutions to those problems was
proposed and various parties were targeted to assume responsibility for a great
number of tasks for which none of them necessarily have the capacity or expertise.
Enacting specific legislation to deal with a specific purpose and limited scope (in the
213 323 (own emphasis).

236
case of crime victim compensation, a statutory fund established for this purpose) may
contribute to improve this situation.
It is unsurprising that the Policy Guidelines criticised the efforts of the role players as
“arbitrary” 214 and “not prioritised” 215 and emphasised the “lack of a structured plan to
manage and coordinate policy development and implementation.” 216 However, the
Policy Guidelines seem to suffer from the same deficiencies as it is also formulated in
unclear language and intent on simultaneously achieving several unrelated goals.
Further, it may be worthwhile to emphasise that none of the more recent crime-related
policy documentation seeks to provide the victim with compensation. For instance, the
White Paper focuses on crime prevention 217 while the National Rural Safety Strategy
places its attention on providing “direction and guidelines to achieve safety and
security within the rural environment”. 218 The policy documentation is therefore
inadequate from a crime victim compensation point of view.
Lastly, it may be considered whether the legislature should consider amending the
existing Criminal Procedure Act to improve the position of crime victims insofar as their
compensation is concerned, or whether it would be better to enact a specific, stand-
alone statute. The provisions of the Act that relate to the compensation of crime victims
have been set out and evaluated in paragraph 2.3 in chapter 2 and will not be repeated
here. It was concluded that, from a crime victim compensation perspective, these
provisions are unsatisfactory. Therefore, if this Act were to be used to house the
statutory reform of the law relating to crime victim compensation, it would have to
undergo significant amendment. In addition to the benefits mentioned above, there are
further advantages relating to the enactment of a stand-alone statute that focuses
specifically on the issue of crime victim compensation. These benefits will be
discussed in paragraph 5.11 in chapter 5 and will not be canvassed here.
Various reasons have already been highlighted as to why a new, stand-alone statute
would be a better solution than merely adopting policies or programmes. Similarly, it
214 DSD Policy Guidelines 4.

215 4.
216 4.
217 Civilian Secretariat for Police White Paper on Safety and Security 2-9.
218 South African Police Services The National Rural Safety Strategy (2010) 6.
237
is suggested that it would be better to draft specific legislation that deals pertinently
with the ring-fenced issue of crime victim compensation.
This section of the chapter has described the shortcomings and the failures of the
existing policies and programmes insofar as crime victim compensation is concerned.
Against this background, it may be concluded that they are inadequate for the purpose
of compensating crime victims for the harm they have suffered and that it would be a
better option to enact new, stand-alone legislation that deals with the issue.
4.4 Conclusion
Chapter 2 concluded that the current legal position relating to crime victim
compensation is unsatisfactory. Against this background it was considered whether
there is a potential alternative for crime victim compensation. It was noted that many
foreign jurisdictions have elected to enact a statutory compensation fund. In its report
on the viability of enacting a similar type of fund for crime victims in South Africa, the
SALRC stated that “developing a motivation for the establishment of a [statutory
compensation fund] in SA remains incomplete, and must be completed if legislation is
to be drafted, since no law should be passed without its objectives being clearly
defined and costed.” 219
To determine whether such a fund could be established in the South African context,
the following approach was adopted. In chapter 3 a general theoretical framework was
advanced on the basis of which future statutory reform of the law of delict may be
justified. This was done by identifying policy considerations which the legislature have
used to reform specific areas within the law of delict.
This chapter sought to respond to the particular gap left open in the SALRC Report, 220
namely the identification of considerations that may justify the legislature’s
development of the law of delict relating to crime victim compensation through the
enactment of a statutory fund. It was argued that the significant risk of falling victim to
crime, and the accompanying risk of receiving no compensation in respect of harm
suffered, may justify the enactment of a fund in a similar way that the risk of harm

220 318-319.
238
justified the development of compensation funds in the context of motor vehicle

accidents and occupational injuries and diseases. Similarly, the proposed
development of the law in this context also fits within the framework identified in
chapter 3 inasmuch as it could promote the constitutional right to social security and
potentially assist victims in bridging an evidentiary obstacle which they may face when
instituting common-law delictual claims.
It was further argued that considerations that thus far have counted against the
introduction of the fund, namely problems with affordability and administration, as well
as potential subversion of the deterrence function of the law of delict, do not present
conclusive arguments against its implementation.
To conclude, it is submitted that, when compared to the common-law development of

the law of delict and amending existing legislation, in principle, a statutory
compensation fund seems a more desirable solution to improve the legal position of
crime victims insofar as their compensation is concerned. However, it should also be
noted that, whether such a proposal should ultimately be endorsed, would depend on
how such a fund would practically work.
For instance, what would the eligibility criteria be? What type of harm should be
recoverable? What should be the relationship between a statutory compensation fund
and the common law of delict? Should the victim’s claim against the compensation
fund be limited? Should the compensation fund be no-fault based or should victims be
required to prove fault? Should the crime be proven, and according to what standard
of proof? Should benefits received under a statutory compensation fund be deducted
from compensation received under a residual common-law delictual claim?
In the following chapter, attention will therefore be given to practical considerations

related to the enactment of a statutory crime victim compensation fund.
239
CHAPTER 5: PRACTICAL CONSIDERATIONS THAT ARE RELEVANT WHEN

DEVELOPING A STATUTORY COMPENSATION FUND FOR CRIME VICTIMS
5.1 Introduction……………………………………………………………………………243
5.1.1 General outline of chapter………………………………………………….243
5.1.2 Comparative legal methodology…………………………………………..245
5.1.3 Relevant previous studies dealing with the establishment
of a South African statutory compensation fund for crime victims…….247
5.2 Categories of victims eligible to institute a statutory claim against
the proposed compensation fund…………………………………………………...249
5.2.1 Victims of violent crimes caused intentionally……………………………250
5.2.1.1 The UK 2012 Scheme…………………………………………………250
5.2.1.1.1 Giving meaning to the term “a crime of violence”………….250
5.2.1.1.2 The meaning of “direct victim” and “directly attributable”….255
5.2.1.1.3 The focus on blameless victims…………………………….256
5.2.1.2 The Dutch Fund………………………………………………………..259
5.2.1.2.1 Giving meaning to the term “a crime of violence”…………259
5.2.1.2.2 Causation……………………………………………………..260
5.2.1.2.3 Focus on the blameless victim………………………………261
5.2.1.3 Conclusion: victims of violent crimes caused intentionally…………263
5.2.2 Witnesses of violent crimes who sustain mental injuries……………….267
5.2.2.1 The UK 2012 Scheme…………………………………………………267

240
5.2.2.2 The Dutch Fund………………………………………………………..268
5.2.2.3 Conclusion: witnesses of violent crimes who sustain
mental injuries………………………………………………………….269
5.2.3 Relatives of the deceased victims of violent crime……………………..272
5.2.3.1 The UK 2012 Scheme…………………………………………………272
5.2.3.2 The Dutch Fund………………………………………………………..275
5.2.3.3 Conclusion: relatives of the deceased victims of violent crime……276
5.2.4 People who sustain injuries as a result of taking risks………………….277
5.2.4.1 The UK 2012 Scheme…………………………………………………277
5.2.4.2 Conclusion: people who sustain injuries as a result of taking
Risks…………………………………………………………………….278
5.2.5 Conclusion: categories of victims eligible to institute a
statutory claim against the proposed compensation fund………………280
5.3 The nature of the harm recoverable from a statutory compensation
fund for crime victims…………………………………………………………………283
5.3.1 The UK 2012 Scheme……………………………………………………...283
5.3.2 The Dutch Fund……………………………………………………………..284
5.3.3 Harm covered under the RAF Act and the COIDA………………………285
5.3.4 Conclusion: recommendation in respect of the nature of the
harm that should be recoverable from the proposed fund………………287
5.4 Nature of the perpetrator’s state of mind and conduct……………………………287
5.4.1 The UK 2012 Scheme…………………………………………………...…288

241
5.4.2 The Dutch Fund…………………………………………………………….289
5.4.3 Conclusion: recommendation regarding the nature of
the perpetrator’s state of mind and conduct…………………………….290
5.5 The potential impact of awarding a statutory claim against a
compensation fund on liability under the common law of delict…………………291
5.5.1 South African statutes that have developed the law of delict………….291
5.5.1.1 The RAF Act……………………………………………………………291
5.5.1.2 The COIDA……………………………………………………………..295
5.5.2 The UK 2012 Scheme……………………………………………………..297
5.5.3 The Dutch Fund…………………………………………………………….298
5.5.4 Conclusion: recommendations regarding the relationship
between a statutory compensation fund and the common law of
delict………………………………………………………………………… 299
5.6 Should benefits received under a statutory compensation fund be deducted from
compensation received under a residual common-law claim of delict?...............303
5.7 Limitation of the victim’s claim against the compensation fund…………………307
5.7.1 South African statutes that have developed the law of delict:
the RAF Act and the COIDA………………………………………………307
5.7.2 The UK 2012 Scheme and the Dutch Fund………………………………308
5.7.3 Conclusion: suggestions relating to the limitation of the
victim’s claim against the proposed fund…………………………………308

242
5.8 Should the compensation fund require victims to prove fault?............................309
5.8.1 South African statutes that have developed the law of delict:
the RAF Act, the Consumer Protection Act 68 of 2008 (“CPA”)
and the COIDA……………………………………………………………...310
5.8.2 The UK 2012 Scheme and the Dutch Fund………………………………310
5.8.3 Conclusion: recommendation that the proposed fund
should be a fault-based compensation scheme…………………………311
5.9 Relevance of the perpetrator’s identity……………………………………………..312
5.10 Miscellaneous practical considerations to be taken into account
when enacting a statutory compensation fund for crime victims…………………314
5.10.1 The time frame for instituting a statutory claim…………………………..314
5.10.2 Place where the crime must have been committed…………………….315
5.10.3 Nationality of applicant…………………………………………………….318
5.10.4 What is practically expected of prospective applicants?........................318
5.11 Conclusion…………………………………………………………………….......318
243
CHAPTER 5: PRACTICAL CONSIDERATIONS THAT ARE RELEVANT WHEN

DEVELOPING A STATUTORY COMPENSATION FUND FOR CRIME VICTIMS
5.1 Introduction
5.1.1 General outline of chapter
Broadly speaking, the aim of this chapter is to answer the following question: if it is in
principle desirable and justifiable to adopt a statutory compensation fund for certain
categories of crime victims, what practical considerations should the legislature take
into account when implementing this proposal? 1
The chapter will commence with a discussion on what may be considered to be the
first issue that any legislature must logically approach once it has decided that it should
enact a crime victim compensation scheme, namely: who should be eligible for
compensation? In other words, it will first be investigated who may be regarded as
crime victims for purposes of the proposed fund. Once this fundamental issue has
been dealt with, the chapter will consider the next question facing a legislature that
have elected to establish a compensation fund, namely: what type of harm should be
recoverable from the proposed statutory fund? Patrimonial harm only, or should the
fund also provide compensation for non-patrimonial harm?
Once these central issues relating to eligibility have been discussed, the net will be
cast somewhat wider and it will be considered what potential impact the availability of
a statutory claim against the proposed fund would have on a victim’s common-law
delictual claim against the perpetrator. Specifically, having regard to the legal position
under other South African compensation funds, the major issue for consideration will
be whether the crime victim’s common-law claim against the wrongdoer should be
abolished.
1 As noted in paragraphs 3.1 and 4.1 above, a distinction may be drawn between the reasons advanced
for the justification of the proposed statutory crime victim compensation scheme and its scope. While
chapters 3 and 4 dealt with the issue of justification of the scheme, this chapter deals with the specific
issues related its scope (should it be enacted). Therefore, chapters 3 and 4 deal mainly with legal and
public policy considerations justifying statutory reform of the law of delict in South Africa, whereas
chapter 5 refer to issues of policy and administrative convenience.
244
The remainder of the chapter will focus on several important practical matters
pertaining to the enactment of the proposed fund. For example, it will be discussed
whether it is preferable for a legislature to cap an eligible victim’s claim and, on a
related point, whether benefits received from other sources should be taken into
account when the compensation fund makes an award to the victim. As will become
clearer from the examination below, these matters have been selected for discussion
because they have enjoyed considerable attention from foreign legislatures that have
already enacted compensation schemes for crime victims. These concerns include the
role which the perpetrator’s state of mind should play in deciding whether the victim
may claim compensation as well as an assortment of considerations that may
influence the everyday functioning of the proposed fund.
As the following section indicates, this chapter involves comparative legal scholarship
in attempting to answer some of the questions outlined above. However, this
dissertation will not focus afresh on the question as to whether the principles
applicable in foreign legal jurisdictions are compatible with current South Africa law.
Nevertheless, it may be recalled that chapter 3 identified various legal and public policy
considerations underlying the establishment of South African statutes relating to motor
vehicle accidents, occupational injuries and diseases as well as defective consumer
products. In chapter 4, it was examined whether the establishment of a statutory crime
victim compensation fund could similarly be justified by the considerations identified
and discussed in chapter 3. In the process, principles and considerations applicable
in foreign jurisdictions were considered. Therefore, the question whether the principles
applicable in foreign legal jurisdictions are compatible with current South Africa law
has received consideration. Furthermore, it may be emphasised that the aim of this
chapter is to discuss various potential practical concerns which a legislature might
have to consider if it indeed chose to enact the proposed scheme and not to focus on
the issue of exactly how these practical proposals will fit into the existing South African
legal framework.
245
5.1.2 Comparative legal methodology
It should be noted that throughout this chapter comparisons will be made with the legal
positions in foreign jurisdictions. Comparative legal scholarship may enlarge the
“supply of solutions”2 that a South African legislature could apply if it decides to create
a statutory compensation scheme. 3 Indeed, giving consideration to foreign solutions
and applying comparative legal reasoning may hold great practical value for the
legislature, if it indeed decides to enact a crime victim compensation scheme. 4
The jurisdictions that have been chosen to illuminate the questions listed above are
the United Kingdom (“UK”) and the Netherlands. Although New Zealand introduced
the first state-funded statutory scheme to compensate crime victims for personal injury
when it enacted the Criminal Injuries Compensation Act of 1963, 5 that scheme was
later subsumed within the accident compensation regime, which was established in
1975 under the Accident Compensation Act of 1972 (“1972 ACA”). In the process, the
1972 ACA also abolished the common law tort claim for compensation arising from
personal injuries. Under the current compensation system, victims of crime, like all
other accident victims, seek refuge in the general no-fault based compensation
scheme as opposed to a specific fund set up to compensate harm arising from crime.
For this reason, New Zealand will not be the focus of attention in this chapter.
One year after the enactment of the New Zealand compensation scheme, the UK
adopted and introduced the Criminal Injuries Compensation Scheme in 1964. The
1964 non-statutory scheme was amended multiple times and eventually placed on a
statutory footing in 1995, under the title of the Criminal Injuries Compensation Act of
1995 (the “CIC Act”). The initial scheme was updated in 2001 (“UK 2001 Scheme”),
2 HP Glenn “The Aims of Comparative Law” in J Smits (ed) Elgar Encyclopedia of Comparative Law 2
ed (2012) 57-66; M van Hoecke “Methodology of Comparative Legal Research” (2015) Law and Method
1 1-3; K Schadbach “The Benefits of Comparative Law: A Continental European View” (1998) 16 Boston
University International Law Journal 331 350.
3 Schadbach (1998) 387. See also Glenn “The Aims of Comparative Law” in Comparative Law 57-66.
4 Glenn “The Aims of Comparative Law” in Comparative Law 61.
5 See S Todd “Forty Years of Accident Compensation in New Zealand” (2011) 28(2) Thomas M Cooley
Law Review 189 189-193; New Zealand Law Commission Report Compensating Crime Victims (2008)
2; G Palmer “New Zealand’s Accident Compensation: 20 Years On” (1994) 44 University of Toronto
Law Journal 223 223-230; BJ Cameron “The New Zealand Criminal Compensation Act, 1963” (1964)
16(1) The University of Toronto Law Journal 177 177-178.
246
after which it was amended in 2008 (“UK 2008 Scheme”) and once more in 2012 (“UK
2012 Scheme”).
There are convincing reasons that justify using the UK as a comparative jurisdiction
for the purposes of this chapter. First, it is the jurisdiction that has operated a
compensatory scheme for crime victims for the longest period. During this time, the
scheme received considerable legislative attention. The developments in the UK may
therefore provide fertile ground for analysis and a useful background against which to
examine practical issues pertaining to the establishment of a potential South African
compensation fund. Secondly, the fact that this compensation scheme has been
described as “the most creative” 6 in its approach to potential applicants and appears
to be a far more generous scheme when compared to those established in Europe, 7
makes it a suitable jurisdiction for investigation.
As an example of a civilian jurisdiction that established a statutory compensation fund

for crime victims, attention will be paid to the Netherlands, where the Criminal Injuries
Compensation Fund Act of 1975 (“Dutch Act”) established the Dutch Compensation
Fund for Violent Crimes in 1976 (“Dutch Fund”). 8 The Netherlands may be regarded
as representative of a series of European jurisdictions which sought to enact statutory
compensation schemes following the adoption of the European Convention on the
Compensation of Victims of Violent Crimes in 1983. 9
It seems appropriate to consider the developments reached in this jurisdiction. Not

only was it one of the first European jurisdictions to establish a compensation scheme
for crime victims, 10 but it also adopts a “narrow view” 11 regarding the eligibility criteria
for compensation which provides a fitting contrast to the approach adopted in the UK.
A final reason for electing these jurisdictions is the important role which English and
Victims of Crime) (2004) 87.
7 D Miers “Compensating deserving victims of violent crime: the Criminal Injuries Compensation
Scheme 2012” (2014) 34 Legal Studies 242 273; House of Commons Committee of Public Accounts
Compensating Victims of Violent Crime 2007-2008 HC 251 (2008) 9; New Zealand Law Commission
Report Compensating Crime Victims (2008) 32-36.
8 Het Schadenfonds Geweldsmisdrijven (“HSG”) available at <https://schadefonds.nl/> (accessed on
10 April 2017).
9 See D Greer “The European Convention on the Compensation of Victims of Violent Crimes” in D Greer
(ed) Compensating Crime Victims: A European Survey (1996) 3-6.

10 The Netherlands set up its scheme in 1975, prior to the adoption of the European Convention on the
Compensation of Victims of Violent Crime (1983). See Greer Compensating Crime Victims 3-6.
247
Roman-Dutch civil law has played within the South African legal historical
framework. 12
While the legislature may therefore make use of comparative analysis to consider the
practical considerations outlined in the introduction to this chapter, it should also be
cognisant of South Africa’s unique social context in comparison with those of the
elected foreign jurisdictions. For example, the different crime levels, standards of
policing and available state resources could be relevant when drawing on experiences
in the UK and the Netherlands and may have an impact on whether foreign
approaches could be adopted by the South African legislature.
5.1.3 Relevant previous studies dealing with the establishment of a South

African statutory compensation fund for crime victims
The SALRC’s report on the creation of a compensation fund for crime victims (“SALRC
Report”) 13 as well as a dissertation completed in 2007 by Von Bonde 14 deal with some
of the practical questions raised in paragraph 5.1.1 above. However, for the reasons
briefly discussed below, these studies still leave a number of issues open for further
investigation.
First, not all of the practical issues listed above receive attention in the documentation.
For example, neither the SALRC Report nor Von Bonde’s dissertation concentrate on
the relationship between a statutory compensation fund and the common law of delict.
In addition, neither of these studies explain what role the state of the perpetrator’s
mind should play in deciding whether the victim may claim compensation. Also, neither
document makes it clear whether the compensation fund should be no-fault based.
12 RG McKerron The Law of Delict: a Treatise on the Principles of Liability for Civil Wrongs in the Law
of South Africa 7 ed (1971) 6-11; NJ van der Merwe & PJJ Olivier Die Onregmatige Daad in die Suid-
Afrikaanse Reg 1 ed (1966) 1-16; Neethling & Potgieter The Law of Delict 7 ed (2015) 3-17; A van
Aswegen “Aquilian Liability I (Nineteenth Century)” in R Zimmermann & D Visser (eds) Southern Cross:
Civil Law and Common Law in South Africa (1996) 559-595; D Hutchison “Aquilian Liability II (Twentieth
Century)‟ in R Zimmermann & D Visser (eds) Southern Cross: Civil Law and Common Law in South
Africa (1996) 595-637.
Commonwealth Jurisdictions Unpublished LLD thesis Nelson Mandela Metropolitan University (2007).
248
Secondly, where the documents do address the questions raised above, they have
not been finally determined and require further investigation. For instance, Von
Bonde’s dissertation summarises the UK 2001 Scheme’s requirements as follows:
“Compensation is paid in the event of criminal injuries sustained in Great Britain and
directly attributable to: [c]rimes of violence; or [o]ffences of trespass on a railway; or
[t]he (attempted) apprehension of (suspected) offenders, the (attempted) prevention
of offences, or the giving of help to any constable engaged in such activity.” 15 With
regard to the first category (crimes of violence), it is reaffirmed that “[w]hat is required,
is proof that the injuries were caused by a crime of violence and not merely an
accident.” 16
However, this still calls for an explanation of the meaning of a “crime of violence” or
the scope of the UK 2001 Scheme’s application. Instead, the study refers to the
judgment by the Court of Appeal in R v Criminal Injuries Compensation Appeals Panel,
ex parte August and Brown, 17 where it was held that the correct approach to
determining whether an incident may be regarded as a crime of violence is not to ask
whether it may be so classified as “a question of law, but to treat the inquiry whether
a crime of violence has been perpetrated as a question of fact, the answer depending
on ‘a reasonable and literate man’s understanding of the circumstances in which he
could under the scheme be paid compensation for personal injury caused by a crime
of violence.’” 18
The SALRC Report pays barely more attention to the eligibility criteria of the UK 2001
Scheme and focuses on the eligibility criteria for compensation schemes in general.
Therefore, it provides brief statements of the legal position adopted by a variety of
jurisdictions on multiple practical issues, e.g. violent crime versus other crime,
intentional versus non-intentional violence, damages for injury or death versus
damage to property, etc. 19
15 Von Bonde Redress for Victims of Crime in South Africa (2007) 212.
16 213-214.
17 [2001] 2 All ER 874 paras 22-24.
19 These matters are only briefly dealt with in SALRC A Compensation Fund for Victims of Crime 80-
90.
249
Thirdly, the references to comparative jurisdictions in those documents are outdated,

which undermines their practical value for the purposes of future reform. For instance,
both documents briefly refer to the eligibility criteria used by the UK 2001 Scheme. 20
However, that scheme was replaced by the UK 2008 Scheme which itself was
substituted by the UK 2012 Scheme.
Taking all of the above into consideration, it therefore may be desirable to examine
these questions afresh and to make specific recommendations for the potential
legislative project. 21 The first practical consideration which will receive attention for
purposes of making these recommendations is the particularly important one of
determining whom the legislature should designate as eligible for support under such
a scheme.
5.2 Categories of victims eligible to institute a statutory claim against the

proposed compensation fund
If the legislature were to enact a compensation scheme, it would allow crime victims
to institute statutory claims against a potentially publicly-funded scheme. Given the
variety of crimes committed and their prevalence, it becomes vitally important to
carefully examine the scope of eligibility for compensation by the proposed fund. After
all, in terms of the common law of delict, plaintiffs are required to prove five basic
elements of delictual liability: harm, conduct, causation, wrongfulness and fault. The
question considered in this part of the chapter is what set of criteria should be used to
ensure that the law relating to crime victim compensation is not merely improved, but
that it is done in a manner that maintains legal certainty and allows for its consistent
application.
The issue of eligibility is further significant if one considers the potential financial
implications of the proposal. As indicated in chapter 4, the SALRC ultimately rejected
the notion of a crime victim compensation fund that covers a seemingly unlimited
20 SALRC A Compensation Fund for Victims of Crime 62-73. Von Bonde Redress for Victims of Crime
in South Africa 212-218.
21 See the general recommendations made in Von Bonde Redress for Victims of Crime in South Africa
287-294.
250
amount of harm suffered by the crime victim. 22 Obviously, South Africa does not have
an unrestricted access to financial resources and, as pointed out elsewhere, there are
several important socio-economic issues that require the legislature’s and treasury’s
attention. 23 Therefore, should the legislature indeed decide to enact a compensation
fund, then the issue of eligibility provides a strategic opportunity to determine the
scope of the proposed fund’s financial exposure and to limit it in a manner that
contributes towards its viability, while ensuring at the same time that the position of
crime victims – and the law relating to their compensation – will indeed be improved
in an effective and practical manner.
In this section it will be illustrated that both the UK and Dutch legislatures have elected
to compensate victims of intentionally-caused violent crimes, witnesses of these
crimes, and relatives of deceased victims. 24 In addition, the UK 2012 Scheme regards
certain risk-takers as compensable. With the eye on the potential enactment of a South
African compensation scheme, the categorisation of eligible crime victims requires
further investigation. Specifically, it must be considered what qualifies as a violent
crime, what relatives of deceased victims should be allowed to claim compensation
and under what circumstances a witness of a crime should be entitled to approach the
proposed fund for statutory relief.
5.2.1 Victims of violent crimes caused intentionally
5.2.1.1 The UK 2012 Scheme
5.2.1.1.1 Giving meaning to the term “a crime of violence”
In the White Paper Compensation for Victims of Crimes of Violence that preceded the
creation of the first non-statutory based compensation scheme in the UK, it was
acknowledged that “personal injury might arise from a great variety of offences” 25 but
it did not provide a comprehensive list of crimes whose victims might apply for

24 See paragraphs 4-6 of the UK 2012 Scheme and section 3 of the Dutch Act.
25 “Crimes of violence (compensation for victims)” HC Deb 05 May 1964 vol 694 cc1127-243 available
at <http://hansard.millbanksystems.com/commons/1964/may/05/crimes-of-violence-compensation-
for> (accessed on 13 April 2017).
251
compensation. 26 Predictably, the non-statutory scheme created thereafter did not set
out such a list either.
However, amendments to the 1964 scheme saw the introduction of the words “crime
of violence” in 1969. 27 As amended, the scheme sought to provide compensation in
circumstances where someone had sustained “personal injury directly attributable to
a crime of violence (including arson and poisoning).” 28 The first statutory scheme that
was created in 1996, as well as the subsequent schemes have used similar wording.
Paragraph 8 of both the UK 2001 Scheme and UK 2008 Scheme stated that, for the
purposes of the respective schemes, a “criminal injury” referred to an injury sustained
in the UK which was directly attributable to
“(a) a crime of violence (including arson, fire-raising or an act of poisoning); or

(b) an offence of trespass on a railway; or
(c) the apprehension or attempted apprehension of an offender or a suspected offender, the
prevention or attempted prevention of an offence, or the giving of help to any constable who is
engaged in any such activity.”
The term “crime of violence” was not defined by either of the earlier schemes. This
approach presented considerable difficulty to the authorities responsible for
determining whether compensation may be awarded. 29 As a result, various attempts
were made to define what is meant by the phrase for the purposes of the earlier
schemes. 30 In R v Criminal Injuries Compensation Board, ex p Clowes, 31 Wien J held
that “a crime of violence means some crime which by definition as applied to the
particular facts of a case involves the possibility of violence to another person.” 32
Widgery J stated that a “crime of violence is a crime which is accompanied by
violence” 33 and agreed with counsel for the Criminal Injuries Board that it “should mean
a crime of which violence is an essential ingredient.”34
26 R (on the application of Jones) v First-tier Tribunal [2013] 2 All ER 625; [2013] UKSC 19 para 7.
27 Para 7.
28 Para 7.
29 See P Duff “Criminal Injuries Compensation: The Scope of the New Scheme” (1989) 52(4) Modern
Law Review 518 526. See also P Duff “The Measure of Criminal Injuries Compensation: Political
Pragmatism or Dog's Dinner?” (1998) 18(1) Oxford Journal of Legal Studies 105 105-142.
30 R (on the application of Jones) v First-tier Tribunal [2013] 2 All ER 625; [2013] UKSC 19 para 12.
31 [1977] 3 All ER 854 at 859.
32 862.
33 864.
34 864.
252
In R v Criminal Injuries Compensation Board, ex p Warner, 35 the court rejected Wien

J’s view as being too wide and because “the possibility of violence arising out of a
criminal offence is not sufficient by itself to make that offence a crime of violence”. The
court instead endorsed the approach of Widgery J, i.e. the view that a crime of violence
is one where the “definition of the crime itself involves either direct infliction of force on
the victim, or at least a hostile act directed towards the victim or class of victims.” 36 On
appeal, the Court of Appeal held that, because the UK government made funds
available for the payment of compensation without being under a statutory duty to do
so, it followed that “the court should not construe the scheme as if it were a statute but
as a public announcement of what the government was willing to do. This entails the
court deciding what would be a reasonable and literate man’s understanding of the
circumstances in which he could under the scheme be paid compensation for personal
injury caused by a crime of violence.”37 What mattered most, the court continued, was
to determine the nature of the crime, not its likely consequences: 38
“Most crimes of violence will involve the infliction or threat of force but some may not. I do not
think it prudent to attempt a definition of words of ordinary usage in English which the board, as
a fact finding body, have to apply to the case before them. They will recognise a crime of violence
when they hear about it, even though as a matter of semantics it may be difficult to produce a
definition which is not too narrow or so wide as to produce absurd consequences”.
The same point was made in C, Petitioner, 39 where it was added that the actual or
probable consequences of the criminal act may be relevant only insofar as they cast
light on the nature of the criminal act, but that for their own sake the consequences
will not be determinative. This line of reasoning was adopted in a subsequent
judgment 40 as the “leading authority on the construction of ‘crime of violence’”. 41
More recently, considering the meaning of “crime of violence” under the UK 2001
Scheme, the Supreme Court noted that it is for the tribunal 42 who decides a case to
35 [1985] 2 All ER 1069 at 1073; [1986] QB 184 at 195.

36 [1977] 3 All ER 854 at 195.
37 R v Criminal Injuries Compensation Board, ex parte Warner [1986] 2 All ER 478 at 480.
38 482.
39 1999 SC 551 at 557.
40 See R v Criminal Injuries Compensation Appeals Panel, ex p August, R v Criminal Injuries
Compensation Appeals Panel, ex p Brown [2001] 2 All ER 874, [2001] QB 774.

41 R (on the application of Jones) v First-tier Tribunal [2013] 2 All ER 625, [2013] UKSC 19 para 15.
42 The First-Tier Tribunal (Criminal Injuries Compensation) is responsible for handling appeals by
victims of violent crime where they disagree with a decision by a claims officer of the CICA about
compensation: see <https://www.gov.uk/courts-tribunals/first-tier-tribunal-criminal-injuries-
compensation> (accessed on 11 April 2017).
253
determine whether the words “a crime of violence” applies to the facts which have
been proved: 43
“Built into that phrase, there are two questions that the tribunal must consider. The first is whether,
having regard to the facts which have been proved, a criminal offence has been committed. The
second is whether, having regard to the nature of the criminal act, the offence that was committed
was a crime of violence. I agree […] that it is primarily for the tribunals, not the appellate courts,
to develop a consistent approach to these issues, bearing in mind that they are peculiarly well
fitted to determine them. A pragmatic approach should be taken to the dividing line between law
and fact […] An appeal court should not venture too readily into this area by classifying issues as
issues of law which are really best left for determination by the specialist appellate tribunals. The
question whether a criminal offence has been committed is a question for the tribunal, having
informed itself as to what the law requires for proof of that offence, to determine as a matter of
fact. The question whether the nature of the criminal act amounted to a crime of violence may or
may not raise an issue of fact for the tribunal to determine. This will depend on what the law
requires for proof of the offence. […] The range of acts that fall within the broad definition may
vary quite widely, so the question whether there was a crime of violence will have to be
determined by looking at the nature of what was done.”
The UK 2012 Scheme sought to provide more guidance on this issue. Paragraph 4 of
the scheme states that persons may be eligible for compensation “if they sustain a
criminal injury which is directly attributable to their being a direct victim of a crime of
violence committed in a relevant place.” Although the Criminal Injuries Compensation
Authority (“CICA”) states in its guide to the UK 2012 Scheme (“UK 2012 Scheme
Guide”) that there is “no legal definition of the term ‘a crime of violence’”, 44 paragraph
2(1) of Annexure B to the scheme states that:
“a ‘crime of violence’ is a crime which involves: (a) a physical attack; (b) any other act or omission
of a violent nature which causes physical injury to a person; (c) a threat against a person, causing
fear of immediate violence in circumstances which would cause a person of reasonable firmness
to be put in such fear; (d) a sexual assault to which a person did not in fact consent; or (e) arson
or fire-raising.”
Paragraph 2(2) immediately adds that an act or omission “will not constitute a crime
of violence unless it is done either intentionally or recklessly.” The issue of the
offender’s state of mind will be discussed as a separate matter in paragraph 5.4 below.
By giving content to the term in this way, the UK 2012 Scheme deviates from the
approach adopted by its predecessors. The attempt by the legislature to provide a
more precise description of the term may be understood against the background of
the courts experiencing difficulty in giving a consistent interpretation to a relatively wide
43 R (on the application of Jones) v First-tier Tribunal [2013] 2 All ER 625, [2013] UKSC 19 paras 16-
18.
44 CICA A Guide to the Criminal Injuries Compensation Scheme 2012 (“UK 2012 Scheme Guide”)
(2012) 7.
254
concept, and should be viewed as a legislative effort to give guidance to the claims
officers and specialist tribunals who must decide on the issue of eligibility. 45
Arguably, a clearer explanation of the term also provides potential applicants with
more certainty regarding the success of their claim. It might therefore be said that it
improves the consistency in adjudication and contributes toward improved access to
justice, certainty and transparency. These are valuable lessons that should be heeded
by the South African legislature if it decides to enact a compensation scheme.
In a consultation document, the Ministry of Justice states that this definition of a crime
of violence will give effect to the legislature’s core purpose, namely to give priority to
the following serious crimes: “Murder and manslaughter, rape, sexual violence,
terrorism, and violent crimes such as wounding or causing grievous bodily harm with
intent”. 46
The scheme’s scope is limited insofar as sexual assault may only be considered as a
violent crime if the victim “did not in fact consent”. 47 In this regard, the scheme
therefore excludes those victims who, although they cannot be said to have consented
in law, had consented in fact to the sexual activity which caused their injuries. 48 This
issue will be discussed further in the recommendation that is set out in paragraph
5.2.1.3 below.
Against the above background and when compared to compensation schemes in other
jurisdictions, the inclusion of arson or fire-raising may appear anomalous. However,
the UK legislature takes the view that these should always be considered to be a crime
of violence because they “in almost all cases are nonetheless very likely to cause, or
create a very serious risk of, bodily injury.” 49 Although consistent with previous
schemes, 50 it is not in line with the other examples of a crime of violence listed in the
paragraph and incompatible with the judicial approach endorsed by the Supreme
45 See generally Miers (2014) Legal Studies 242-258; Ministry of Justice Getting it Right for Victims and
Witnesses (2012) 50-55; Ministry of Justice Getting it Right for Victims and Witnesses: the Government
Response (2012) 39-48.
46 Ministry of Justice Getting it Right for Victims and Witnesses 11.
47 Paragraph 2(1)(d) of Annexure B of the UK 2012 Scheme.
48 Miers (2014) Legal Studies 258-259.
50 For instance, see the UK 2001 Scheme and the UK 2008 Scheme.
255
Court, which focuses not on the consequences of an act, but rather on its nature to
establish its criminality. 51
The term “crime of violence” is further given meaning by the remainder of Annexure
B, which contains a series of incidents that will not be regarded as crimes of violence
under the UK 2012 Scheme. For example, where an injury results from suicide or
attempted suicide, the use of a vehicle or an animal attack, they are excluded from the
scheme’s cover. 52 The current scheme does, however, provide that it may be a crime
of violence where the suicidal person intended to cause injury. This is a departure from
earlier schemes which did not deal with this issue in express terms. It has arguably
been included because it will provide certainty and contribute in avoiding unnecessary
applications or litigation.
Furthermore, the scheme expressly excludes conduct that gives rise to injuries
sustained in the usual course of sporting or other activities to which a person may
have voluntarily consented. 53 Also, injuries which are sustained in utero as a result of
harmful substances willingly ingested by the mother during pregnancy will not be
regarded as a crime of violence for the purposes of the scheme. 54
A proposal regarding the meaning of the term “crime of violence” for a potential South
African compensation scheme will be made in paragraph 5.2.5 once all of the eligibility
criteria of the UK 2012 Scheme and the Dutch Fund have been discussed.
5.2.1.1.2 The meaning of “direct victim” and “directly attributable”
Paragraph 4 of the UK 2012 Scheme states that only those individuals who suffer
criminal injuries that are “directly attributable to their being a direct victim of a crime of
violence committed in a relevant place” will be eligible for compensation. This differs
from earlier schemes, 55 in terms of which a criminal injury is regarded as a personal
injury, being “an injury sustained in and directly attributable to an act occurring in Great
51 See R (on the application of Jones) v First-tier Tribunal [2013] 2 All ER 625, [2013] UKSC 19.
52 Paragraph 4 of Annexure B of the UK 2012 Scheme.
53 Paragraph 4(1)(d) of Annexure B of the UK 2012 Scheme.
54 Paragraph 4(1)(e) of Annexure B of the UK 2012 Scheme.
55 See paragraphs 8-9 of the UK 2001 Scheme and the UK 2008 Scheme.
256
Britain”. In R v CICB, ex parte Williams, 56 the court held that “directly attributable”
implies an approach that is narrower than the concept of causation in the common law
of negligence. 57 It has been understood to mean something narrower than
foreseeability. 58
A “direct victim” is described as “someone who was directly injured by an assailant” 59

and therefore seems to repeat what is meant with directly attributable. Whether or not
this additional emphasis on the “directness” of the nexus that is required to exist
between the victim’s harm and the perpetrator’s conduct will make a practical
difference may be doubted. At the very least, however, the fact that the new scheme
contains two references to the nature of the injury’s aetiology (“directly attributable”
and “direct victim”) highlights the intention to constrain the scope of the UK 2012
Scheme’s cover to a certain class of victim.
5.2.1.1.3 The focus on blameless victims
A significant feature of the UK 2012 Scheme is that it “is intended to compensate

blameless victims of crimes of violence” 60 who co-operate with the criminal justice
process. 61 Like its predecessors, the UK 2012 Scheme contains a series of
circumstances in which an award will be withheld or reduced on the basis that the
victim of the crime is for some or other reason wholly or partly to blame for their harm. 62
For example, an award may be withheld where the incident giving rise to the criminal
injury has not been reported to the police “as soon as reasonably practicable.”63 When
deciding whether something has been so reported, the CICA may consider whether
the victim was too young to report the incident, lacked the mental capacity to report it,
56 [2000] PIQR Q339 para 40.

57 Miers (2014) Legal Studies 249.
58 249.
59 CICA UK 2012 Scheme Guide 7.
60 30.
61 Ministry of Justice Getting it Right for Victims and Witnesses 50. See also Miers (2014) Legal Studies
258.
62 See paragraphs 22-29 read together with Annexure D of the UK 2012 Scheme.
63 See paragraphs 22(a) and (b) of the UK 2012 Scheme.
257
or if the effect of their injuries meant that they were unable to provide a full report to
the police immediately. 64
Similarly, an award may be withheld unless the applicant has co-operated as far as
reasonably practicably in bringing the assailant to justice. 65 In this regard, it is
unnecessary for the offender to be identified or convicted for the victim to receive
compensation. 66 However, the CICA requires victims to have done “everything
possible”67 to help the police apprehend the assailant, and “bring them to justice.” 68
As justification for such a high level of co-operation, the compensation authority refers
to the publicly funded nature of the scheme, which implies that victims must be willing
to cooperate fully with the investigation of crime before receiving money that ultimately,
albeit indirectly, comes from innocent, tax-paying members of the public. 69
Furthermore, the CICA may withhold or reduce awards where the victims failed to take
all reasonable steps to assist a claims officer in the consideration of their application. 70
Although the scheme does not provide an indication of what is meant with reasonable
steps, the UK 2012 Scheme Guide, states that, if the victim failed to inform the CICA
of a change in address or circumstances, or repeatedly and without reasonable excuse
failed to respond to CICA communications, or failed to inform the CICA of “something
that could affect [their] claim”, 71 it may justify withholding or reducing their
compensation award.
Lastly, awards may be withheld or reduced where the victim provides false or
exaggerated details about their injuries or if they fail to attend a medical examination
aimed at a verification of their injuries. 72
The above provisions are rational and could be used to reinforce the criminal justice
system. 73 Indeed, it is conceivable that the incentive of receiving compensation may
64 CICA UK 2012 Scheme Guide 29; paragraph 22 of the UK 2012 Scheme.

65 See paragraph 23 of the UK 2012 Scheme.
67 29.
68 29.
69 29.
70 Paragraph 24 of the UK 2012 Scheme.
71 CICA UK 2012 Scheme Guide 29-30.
72 30.
73 See also SALRC A Compensation Fund for Victims of Crime 88-89.
258
actually increase the rate of reporting and co-operation with the police. 74 It will be
proposed that they be included in a South African compensation fund, if it were to be
established. Of course, the incorporation of this approach by the South African
legislature should also pay heed to the particular challenges faced by the South
African context, e.g. numerous crime victims who live in rural areas may find it difficult
to approach police and to immediately report crimes to the police. This is only one
example and the legislature would be well advised to examine similar challenges
posed by South African conditions prior to the enactment of the proposed fund.
A different ground for reduction or withholding is mentioned in paragraph 25 of the

scheme. It refers to situations where the conduct of the applicant “before, during or
after the incident giving rise to the criminal injury makes it inappropriate to make an
award.” 75 A conclusive list is not provided, but the UK 2012 Scheme Guide provides
the following examples: where the victim acted in an aggressive or threatening way
and provoked the incident in question, where he intended to provoke an assault or
fight, or where he willingly took part in a fight or sought revenge. 76 The CICA will not
accept intoxication as an excuse for such conduct 77 but at the same time will not
reduce or withhold a compensation award solely because the victim consumed alcohol
or used drugs, which made them more vulnerable to being harmed. 78
Significantly, if an applicant has a criminal record, even under circumstances where

he is blameless in the incident that gave rise to his injury, his application may be
refused or reduced. 79 The current scheme identifies the circumstances in which an
award will be withheld or reduced and deals with the situation where the applicant has
“unspent convictions.” 80 Broadly speaking, an award will be refused to someone who
on the date of their application has an unspent conviction which resulted in either a
custodial sentence or a community order. 81 It should be noted, however that an
applicant with an unspent conviction, who did not receive a custodial sentence or a
74 88-89.
80 Paragraph 26 of the UK 2012 Scheme. See also Annexure D to the UK 2012 Scheme for a full list of
such circumstances; CICA UK 2012 Scheme Guide 49.

81 Ministry of Justice Getting it Right for Victims and Witnesses 46. See further paragraph 3 of Annexure
D of the UK 2012 Scheme.

259
community order, may receive compensation from the scheme in exceptional

circumstances and compensation authorities are given a degree of discretion to make
the necessary decision. 82
It is therefore clear that the scheme focuses on compensating “blameless victims of

crimes of violence.” 83 This differentiation between deserving and undeserving victims
is also characteristic of earlier UK schemes and is justified as follows: 84
“We acknowledge that our proposals in relation to the Scheme rules on unspent convictions […]
could impact […] on those who have on their record relatively minor unspent convictions.
However, we consider that tougher rules are warranted. The Scheme is a taxpayer-funded
expression of public sympathy and it is reasonable that there should be strict criteria around who
is deemed ‘blameless’ for the purpose of determining who should receive a share of its limited
funds. We consider that, in principle, awards should only be made to those who have themselves
obeyed the law and not cost society money through their offending behaviour.”
5.2.1.2 The Dutch Fund
5.2.1.2.1 Giving meaning to the term “a crime of violence”
Sections 3(1)(a) and (b) of the Dutch Act states that the fund will compensate the
victims of violent crimes caused intentionally within the Netherlands and who suffer
serious bodily or psychiatric injuries, as well as the victims of intentionally-caused
violent crime that occurred on board a Dutch ship or aeroplane outside the
Netherlands and who have suffered serious bodily or psychiatric injuries.
The fund’s accompanying policy document, the Beleidsbundel Schadenfonds

Geweldsmisdrijven (“Beleidsbundel”), 85 provides greater clarity regarding the
scheme’s eligibility criteria. It states that the term “violent crime” refers to a punishable
crime, or criminal attempt, as understood in terms of the Dutch Criminal Code, where
violence is used, or threatened to be used, against the victim. 86 Therefore, if an
incident is not punishable as a crime in terms of the Criminal Code, it cannot give rise
82 Ministry of Justice Getting it Right for Victims and Witnesses 46. See also paragraph 4 of Annexure
D of the UK 2012 Scheme.
85 HSG Beleidsbundel (2017).
86 HSG Beleidsbundel (2017) 5; HSG Beleidsbundel (2016) 5.
260
to a violent crime for purposes of compensation under the scheme. 87 Violence may
consist of bodily 88 or psychiatric violence. 89
This approach seems to be clearer and simpler than the one adopted by the UK 2012
Scheme and, as indicated below, it is suggested that the South African legislature
adopt a similar position, if a compensation scheme were to be enacted.
Nevertheless, the Beleidsbundel identifies crimes that will always be classified as

violent crime: assault, public violence, threats of violence, trafficking, harassment,
rape, violent robbery and murder. 90 Unlike the UK 2012 Scheme, arson will only be
regarded as a violent crime if the fire was started intentionally and then posed danger
to life or a risk of serious injury to a potential victim. 91 Placing a victim under severe
psychiatric pressure may also amount to a violent crime. 92 No definition is given as to
what would constitute extreme pressure, but the Beleidsbundel expressly states that
it may include sexual crimes. 93 Lastly, violent acts committed against property, theft
and insult are expressly excluded as violent crimes. 94
Similar to the UK 2012 Scheme, the Dutch Fund also emphasises that conduct may
only qualify as a violent crime if it was caused intentionally. 95 As stated earlier,
attention will be paid to this topic in paragraph 5.4 below.
5.2.1.2.2 Causation
A notable difference between the Dutch Fund and its UK counterpart is the fact that
neither the Dutch Act nor the Beleidsbundel indicate the nature of the causal link that
is required to exist between the perpetrator’s conduct and the victim’s injury. It is
therefore unclear whether a victim is expected to prove, in the same way as under the
UK 2012 Scheme, that he was a “direct victim” of a violent crime or whether his injury
87 HSG Beleidsbundel (2017) 5. See also HSG Beleidsbundel (2016).

88 “Lichamelijk geweld” – see HSG Beleidsbundel (2017) 5. See also HSG Beleidsbundel (2016).
89 “Psychische geweld” – see HSG Beleidsbundel (2017) 5. See also HSG Beleidsbundel (2016).
95 HSG Beleidsbundel (2017) 5. See also HSG Beleidsbundel (2016) 5.
261
was “directly attributable” to the violent crime. Indeed, it is not clear whether another
causal measure, e.g. reasonable foreseeability, may suffice for the purposes of the
Dutch scheme. In this regard, as indicated below, the approach adopted by the UK
Scheme 2012 appears to be preferable.
5.2.1.2.3 Focus on the blameless victim
When compared to the UK 2012 Scheme, the Dutch Fund does not have the same
exaggerated focus on blameless victims. For example, the Beleidsbundel states that
reporting a violent crime is not a requirement when applying for compensation. 96
However, practically speaking, a victim’s statement to the police, as well as the
ensuing criminal investigation provides the evidentiary basis upon which the Dutch
Fund determines the plausibility of the incident. 97 Therefore, the Dutch Fund advises
potential victims to report the incident to the police as soon as possible. Unlike the UK
2012 Scheme, however, it is not a formal ground for potential reduction or withholding
of an award. Similarly, the Dutch Fund and the Dutch Act is silent on the matter of prior
convictions.
Notwithstanding the above, section 5 of the Dutch Act stipulates that compensation
may be withheld or reduced if the victim’s injury is the result of circumstances for which
the victim or the relative may be held partly responsible. As in the UK, the underlying
purpose in this context is to compensate those who, through no fault of their own, fall
victim to violent crime. 98 The Beleidsbundel therefore similarly explains that paying the
maximum amount of compensation to someone who partly contributed towards his
own harm is inappropriate, considering the fact that damages are paid with money
funded from other innocent, tax-paying members of the public. 99
To determine whether the applicant contributed towards his own harm, the Dutch Fund
will consider whether he could, and should, have foreseen the harm arising and
whether he could, and should, have taken steps to avoid it. 100 Essentially, this appears
96 HSG Beleidsbundel (2017) 6. See also HSG Beleidsbundel (2016) 5-6

97 HSG Beleidsbundel (2017) 6. See also HSG Beleidsbundel (2016) 5-6
98 HSG Beleidsbundel (2017) 11.
99 11.
100 11.
262
to be a guideline that aims to establish whether the victim was negligent and whether
such negligent conduct contributed towards the victim’s harm. To provide further
guidance on the issue, the Beleidsbundel describes a number of situations where it
may be held that the victim contributed to his own harm and how compensation may
be calculated in such circumstances. 101
The approach adopted by the Dutch Fund as well as the UK 2012 Scheme
corresponds with the position in the South African law of delict, insofar as it may be
said that, broadly speaking, the latter also takes note of victims’ culpable contribution
towards their own harm when assessing the amount of damages that is ultimately
payable by a wrongdoer to the victim. 102 Generally, the South African legislature, if it
decides to set up a statutory compensation fund, should consider following a similar
approach.
Before elaborating on this suggestion, it should be noted, however, that there is some
debate as to whether a victim’s contributory negligence should be considered where
the wrongdoer’s harm-causing conduct was intentional. 103 More specifically, should a
person who acted intentionally in causing harm to another be allowed to rely on the
other person’s negligence in order to reduce the amount of compensation payable to
the victim? In this context, Neethling and Potgieter take the view that “a defendant who
has intentionally caused harm to the plaintiff will not be able to ask for a reduction of
damages because of contributory negligence [on the part of the plaintiff]”. 104 However,
there is some debate on this topic and it has been suggested that, “in instances of
voluntary assumption of risk where consent is invalid, contributory intent could be an
applicable defence leading to the exclusion of liability.” 105 A thorough analysis of this
debate falls outside the scope of this dissertation, but the suggestion made below
should be informed by this debate and the legislature, if it indeed decides to enact a
compensation scheme, should consider it before making a final suggestion. 106
101 See HSG Beleidsbundel (2017) 11-12 for these circumstances.

102 Section 1(1)(a) of the Apportionment of Damages Act 34 of 1956 allows for the reduction of the
damages payable by a defendant if the plaintiff’s culpable conduct contributed towards his own harm
See further MM Loubser & JR Midgley (eds) 2 ed (2012) The Law of Delict in South Africa 436.
103 See Neethling & Potgieter The Law of Delict 169; R Ahmed Contributory Intent as a Defence Limiting
or Excluding Delictual Liability (2011) Unpublished LLM thesis University of South Africa.
104 Neethling & Potgieter The Law of Delict 169; PQR Boberg The Law of Delict Volume One: Aquilian
Liability (1989) 741.

105 Ahmed Contributory Intent 150.
106 For a full discussion of this debate, see generally Ahmed Contributory Intent.
263
It is suggested that, if the legislature were to enact the proposed scheme, it should
provide for discretion to decide whether compensation may be withheld or reduced in
the event that the victim’s injury is the result of circumstances for which he was partly
responsible. To decide whether the victim was so responsible, the proposed fund
should refer to the common-law tests for intention and negligence. It is further
proposed that, similar to the UK 2012 Scheme and Dutch Fund, the proposed scheme
should ultimately make its decision based on the nature and severity of the victim’s
injuries, the circumstances under which it was inflicted and the degree to which it may
be said that the victim’s culpability contributed to his harm. To help it make
assessments, the legislature may further consider providing the fund with a list of
guiding principles and scenarios in the same way in which the Beleidsbundel offers
some policy-based guidance to the compensation authorities responsible for the Dutch
Fund. 107 This proposal would allow the proposed fund with flexibility in its decision-
making, which it could implement to ensure the financial viability of the fund and to
give effect to the notion of protecting innocent tax-payers as well as crime victims.
5.2.1.3 Conclusion: victims of violent crimes caused intentionally
The Dutch Fund applies the established criminal law meaning to the term “crime of
violence”. Making use of settled legal concepts and terminology has the following
advantages. It provides prospective applicants with legal certainty and in doing so also
promotes the right to access to justice. Furthermore, it is arguably more likely that the
Dutch Fund would apply settled terminology in a consistent manner than terminology
that must be given content during its application. In addition, it may provide
compensation authorities and applicants with certainty about the eligibility of claims on
this point and thereby decrease the possibility of unnecessary applications or potential
litigation.
The Dutch approach seems simpler and clearer than the one adopted in the UK, where
the tradition seems to be not to define the concept precisely. Although the UK 2012
Scheme seeks to provide content to the term when compared to earlier schemes, it
107 HSG Beleidsbundel (2017).

264
may still be regarded as a relatively wide concept and it may therefore continue to
present difficulties insofar as its consistent application is concerned.
It is therefore recommended that the proposed scheme aligns the meaning of the term
“crime of violence” with the meaning which may be ascribed to that term under South
African criminal law. This means that a prospective applicant should be asked to
provide the compensation authorities with sufficient evidence so as to allow the latter
to conclude, on a balance of probabilities, that he has suffered harm arising from a
violent crime – as that term is understood in criminal law. The policy outcome achieved
in this regard is in line with the UK 2012 Scheme and the Dutch Fund as well as most
other statutory crime victim compensation schemes. 108 Furthermore, similar to the
proposal made below regarding causation, this outcome would enhance the fund’s
financial viability, while at the same time improving the compensatory regime relating
to a substantial category of crime victims in South Africa. In this way, a balance might
be achieved between the interests of crime victims, the financial position of the
proposed fund as well as the innocent taxpayers who might be indirectly involved in
the set-up of the compensatory scheme.
In the South African context, it is suggested that the following crimes should
specifically be recorded as violent crimes: crimes against life (murder); crimes against
the person (assault, including common assault and assault with the intention to do
grievous bodily harm); rape (as defined in the Criminal Law (Sexual Offences and
Related Matters) Amendment Act 32 of 2007); and other sexual offences (as the term
is defined in the Criminal Law (Sexual Offences and Related Matters) Amendment
Act). Furthermore, in line with both foreign compensation schemes, it is recommended
that the proposed fund should expressly exclude property damage and theft as a form
of violent crime.
Under the UK 2012 Scheme, it is generally stated that a person who has consented in
fact to a sexual assault may not claim compensation from the fund. It is proposed that
the South African legislature adopt a similar position regarding consent. In this context,
concern may be noted about the well-being of children, and other vulnerable
categories of people, who factually consented to sexual offences. 109 Therefore, it is
108 See generally Greer Compensating Crime Victims.

109 See also J Burchell Principles of Criminal Law 4 ed (2013) 614-618.
265
proposed that the legislature adopt a similar strategy to the one formulated by the UK
2012 Scheme on this point: 110
“Current practice assumes that a child under 13 who is the victim of sexual assault will be eligible
for compensation if an offence is reported to the police and the child co-operates so far as
reasonably practical with the CJS. Between 13 and 15 a more difficult assessment must be made
in each case. Consensual sexual activity between young people in this age group who are of
similar age and circumstances should not attract criminal injuries compensation. However, the
more unbalanced a sexual relationship involving a young person becomes, the more likely it is
that he or she will suffer harm such that they should be compensated (whether they in fact
consented or not). Factors that claims officers consider in assessing this include age and
emotional maturity (and the disparity in either), vulnerability, the reality of consent in all the
circumstances, and the nature of the relationship between the parties.”
Under the UK 2012 Scheme, injuries arising from the use of a vehicle is not regarded
as a crime of violence, unless the vehicle was used with the intent to cause an injury. 111
In this context, it is proposed that, where an injury arises as a result of the driving of a
motor vehicle, the victim, or his relatives, should have regard to the Road Accident
Fund Act 56 of 1996 ( “RAF Act”) as it already provides cover for harm arising from
motor vehicle accidents. 112 Furthermore, it is recommended that the proposed fund
adopt the UK 2012’s Scheme in relation to harm that arises from a suicide. 113
With regards to the question of causation, it is arguable that the degree of strictness
with which the standard of causation is formulated influences the extent of a
compensation fund’s exposure, and hence its viability. As a result, setting a stricter
standard may further the fund’s viability and provide a clear guideline for prospective
victims. As indicated, the Dutch Act is silent on the question, whereas the UK 2012
Scheme insists on a direct causal connection between the victim’s injuries and the
perpetrator’s conduct. In the interest of financial viability, clarity and consistent
application, it is recommended that the legislature adopt a similar approach to the one
set out in the UK 2012 Scheme. It may be noted that this proposal would mean that
there is a difference between the approaches adopted by the statutory compensation
111 Paragraph 4(1)(b) of Annexure B of the UK 2012 Scheme.
112 If legislation for establishment of the fund is enacted, the legislature should consider whether a
person may claim against the proposed fund where another person has used a motor vehicle as a
weapon to commit an intentionally-committed crime. If the legislature decides to allow such a claim, it
must be ensured that the same victim does not receive further compensation under the RAF so as to
avoid double compensation.
113 Paragraph 4(1)(a) of Annexure B of the UK 2012 Scheme.
266
scheme and the common law of delict. 114 For the reasons mentioned above, it is
contended that such difference may be justified.
Both schemes focus on the compensation of innocent victims insofar as it may be said
that compensation awards may be reduced or withheld where the victim’s culpable
conduct contributed towards his injury. This approach is commendable, considering
also that it is in line with section 1(1)(a) of the Apportionment of Damages Act, which
regulates this topic in other cases. As stated above, the proposed scheme should have
sufficient discretion to reduce or withhold compensation in the event that the victim is
partly responsible for his own harm, with attention being paid to the circumstances of
the case, the nature and degree of his injury and the degree of the victim’s culpable
contribution to his own injury. In addition, it is proposed that the UK 2012 Scheme’s
stricter stance on criminal convictions be adopted, insofar as the proposed fund should
be entitled to take any spent or unspent convictions into account when determining
whether a compensation award should be withheld or reduced. As explained above,
the differentiation between deserving and undeserving victims may be justified on the
basis that tough rules are required. Indeed, the justification offered by the UK’s Ministry
of Justice for the stricter rules introduced into the UK 2012 Scheme is also applicable
in this context: 115
“The Scheme is a taxpayer-funded expression of public sympathy and it is reasonable that there
should be strict criteria around who is deemed ‘blameless’ for the purpose of determining who
should receive a share of its limited funds. [Broadly speaking, it is proposed] that, in principle,
awards should only be made to those who have themselves obeyed the law and not cost society
money through their offending behaviour.”
Lastly, the legislature should consider providing discretionary powers to the

administrative authority responsible for assessing applications so that it would be
possible for an applicant with a criminal record who suffered harm arising from crime
to receive statutory compensation under exceptional circumstances. 116
114 For a discussion of the principles relating to causation in the common law of delict, see MM Loubser
& JR Midgley (eds) The Law of Delict in South Africa 2 ed (2012) 69-102; J Neethling & J Potgieter The
Law of Delict 7 ed (2015) 183-219.
116 See Ministry of Justice Getting it Right for Victims and Witnesses 46. See also paragraph 4 of
Annexure D of the UK 2012 Scheme.

267
5.2.2 Witnesses of violent crimes who sustain mental injuries
The UK 2012 Scheme allows a claim for mental injury if it is directly attributable to a
person witnessing, and being present at, an incident in which a loved one sustained a
criminal injury in the circumstances described in paragraph 5.2.1 above or paragraph
5.2.4 below. 117 Similarly, persons may be eligible for compensation if the mental injury
they suffer from is directly attributable to witnessing the immediate aftermath of an
incident in which a loved one was criminally injured in those circumstances. 118
It should not be too difficult to determine whether someone was present and witnessed
an intentionally-caused violent crime. However, it may be more difficult to give content
to “immediate aftermath”. In accordance with the UK 2012 Scheme Guide it refers to
“the period of time immediately following the incident in which a loved one was injured
and not where someone is later told about the incident either by the victim or another
person.”119 The CICA states that it “will be taken to mean arriving at the scene of the
incident before the victim is moved to another location,” 120 and expressly excludes
harm that may befall one as a result of “dealing with the police and medical
authorities”. 121
In this context, “loved one” refers to a person with whom the applicant had a close
relationship of love and affection at the time of the incident and if the loved one is alive
at the date of the application, continues to have such a relationship. 122
Miers notes that under a comparable provision of the UK 2001 Scheme123

compensation could be awarded to victims who suffered mental injuries in the UK
when witnessing, in real time, the deaths of their loved ones during the terrorist attack
on the World Trade Centre in New York on 11 September 2001. 124 Applicants in that
case were “involved” in the “immediate aftermath” and therefore satisfied the
117 Paragraph 6 of the UK 2012 Scheme; CICA UK 2012 Scheme Guide 9.

118 Paragraph 6 of the UK 2012 Scheme; CICA UK 2012 Scheme Guide 9.
119 UK 2012 Scheme Guide available at <https://www.gov.uk/guidance/criminal-injuries-compensation-
a-guide> (accessed on 10 April 2017).

121 9.
122 See Paragraph 6 of the UK 2012 Scheme.
123 See paragraph 9(b)(ii) of the UK 2001 Scheme.
268
requirements under the UK 2001 Scheme. 125 However, this will not be possible under
the UK 2012 Scheme, which requires the violent crime to have been committed in the
UK or a “relevant place”. 126
Lastly, as indicated in the UK 2012 Scheme Guide, if an applicant institutes a claim

because he witnessed a violent crime or its immediate aftermath, he must have
suffered a mental injury as a result and he will be required to provide the compensation
authorities with medical evidence from a psychiatrist or a clinical psychologist
confirming that this is indeed the case. 127
The Dutch Fund may regard those who have witnessed a violent crime or who have
been directly confronted with the consequences of a violent crime as victims of a
violent crime for the purposes of section 3(1) of the Act and therefore award them
compensation for the psychiatric injuries which they obtain. 128
The Beleidsbundel expressly deal with the following two categories of witnesses: those
who have witnessed a violent crime in which a “naaste”129 has been seriously
wounded 130 or killed, and where a child is the witness of systematic domestic
violence. 131
Concerning the first category, the Dutch Fund will presume that the victim has suffered
a compensable psychiatric injury and the witness will therefore not be required to
advance any medical information in this regard. 132 It may therefore be significant to
determine whether the primary victim may be described as a “naaste”. The fund
recognises a “naaste” as married or unmarried life partners, children, parents, siblings
and those individuals who play such an important role within the family of the witness

126 See Miers (2014) Legal Studies 253. See paragraph 5.10.2 below for a discussion of what a “relevant
place” means for the purposes of the scheme.
129 A “naaste” may be translated to a “loved one”.
130 According to the HSG Beleidsbundel (2017) this means a category 4 injury: see HSG Letsellijst
(2016).
132 10.
269
that their relationship may be equated to that of family members. 133 In all other cases,
i.e. where the witness does not stand in the aforementioned relationship with the
primary victim of the violent crime, it will not be presumed that the witness suffered a
psychiatric injury. The victim will accordingly be required to provide sufficient evidence
of an affective relationship that is worthy of legal protection in the form of compensation
being paid by the fund, as well as medical information that a psychiatric injury was
indeed suffered by the witness. 134
Significantly, in relation to this category of witness, it should be noted that

compensation will only be awarded if the primary victim has also applied for
compensation under section 3(1) of the Act for the injuries which he sustained as victim
of an intentionally-caused violent crime. This limitation is justified on the basis that it
ensures that the latter has indeed been wounded. 135
In the context of a child’s exposure to systematic domestic violence, the Dutch Fund
distinguishes between children under 12 years and children between the ages of 12
and 18. With regard to the former, the fund presumes a psychiatric injury, whereas
children in the latter category are required to prove a serious psychiatric injury for the
purposes of receiving compensation under the Fund. 136
Neither the Act nor the Beleidsbundel provide a clear indication of when a victim would
have been directly confronted with the consequences of a violent crime and in this
regard the clarity provided under the UK 2012 Scheme is to be preferred.
5.2.2.3 Conclusion: witnesses of violent crimes who sustain mental injuries
Both schemes aim to compensate witnesses of violent crimes as well as those who
are directly confronted with the consequences or immediate aftermath of violent
crimes. It is recommended that the proposed fund, if it were to be enacted, should
follow suit. This would mean that a person who has suffered psychiatric harm due to
133 10.
134 10.
135 HSG Beleidsbundel (2017) 10. In this context, this means that the Dutch Fund would want to
ascertain that the primary victim did obtain a category 4 injury: see HSG Letsellijst (2016).
136 HSG Beleidsbundel (2016) 8
270
witnessing the immediate aftermath of a violent crime would be allowed a statutory

claim against the proposed fund whereas the common law of delict does not recognise
a remedy under similar circumstances. This difference in approach between the
proposed scheme and the common law may nevertheless be justified on the basis
that, as the Dutch Fund suggests, these people may rightly be regarded as victims of
violent crimes themselves.
As indicated in paragraph 5.2.2.1 above, it may be difficult to determine the meaning

of “immediate aftermath”. In this regard, the UK 2012 Scheme Guide refers to “the
period of time immediately following the incident in which a loved one was injured and
not where someone is later told about the incident either by the victim or another
person.”137 The CICA states that it “will be taken to mean arriving at the scene of the
incident before the victim is moved to another location,” 138 and expressly excludes
harm that may befall one as a result of “dealing with the police and medical
authorities”. 139 Should the legislature elect to award a claim to people other than those
who actually witnessed the violent crime, the approach adopted in the UK is preferred
to the one adopted in the Netherlands, because neither the Dutch Act nor the
Beleidsbundel provide a clear indication of when a victim would have been directly
confronted with the consequences of a violent crime.
To ensure the fund’s financial sustainability, it is suggested that it should also seek to
place a limit on the category of people eligible to institute statutory claims in this
category. 140 Therefore, it would be necessary to state the relationship between the
witness and the primary victim of the violent crime. As a result, a definition of “loved
one” should be provided by the proposed fund. In this context, the approach adopted
by the UK 2012 Scheme is advisable, especially considering the fact that it would be
in line with the judicial stance that is taken regarding delictual claims instituted by
victims of so-called emotional shock. 141 By thus stating that a “loved one” is deemed
137 UK 2012 Scheme Guide available at <https://www.gov.uk/guidance/criminal-injuries-compensation-
a-guide> (accessed on 10 April 2017).

139 9.
140 See the HSG Letsellijst (2016) 8-10 and Annexure E of the UK 2012 Scheme for the categories of
mental injury victims recognised by the two foreign schemes. See Ministry of Justice Getting it Right for
Victims and Witnesses (2012) 3, where the Secretary of State emphasises the importance to provide
financial stability by “focusing resources on the most compelling cases.”
141 See Road Accident Fund v Sauls 2002 (2) SA 55 (SCA), where it was held that in cases dealing with
the negligent causation of emotional shock and resultant detectable psychiatric injury, it would not be
271
to refer to a person with whom the applicant had a close relationship of love and
affection at the time of the incident, the proposed fund would potentially cover the
specific categories of individuals identified by the Dutch Fund (married or unmarried
life partners, children, parents, siblings and those individuals who play a significant
role within the family of the witness), while also remaining open to further potential
categories of victims being recognised.
In order to further limit the proposed fund’s exposure, these additional

recommendations may be made. First, it is suggested that, if the proposed fund were
to compensate people other than those who actually witnessed the violent crime (e.g.
those who witnessed its immediate aftermath), it should clarify under what conditions
such a victim would be eligible. In this regard, the approach adopted by the UK 2012
Scheme is preferred. This means that the victim must have suffered a detectable
psychiatric injury and would be required to provide the compensation authorities with
medical evidence from a psychiatrist to confirm that this is indeed the case. 142
It could also be considered, in line with the judicial stance taken in delictual cases, to
extend the category so as to include those who were later told about the incident by
the victim or another person. 143 The fear of exposing the fund to unlimited liability in
this way could be tempered by ensuring that the victim proves a recognisable
psychiatric injury. 144 Indeed, it is recommended that, unlike the position that obtains in
the Netherlands, victims should always be required to do so and that the fund should
not incorporate a presumption in favour of any category of victim.
justifiable to limit such a claim to a defined relationship between the primary and secondary victims,
such as parent and child, husband and wife, etc.
142 This would also be in line with the legal position in the South African common law of delict relating
to compensation for non-patrimonial harm arising from emotional shock insofar as, in that context, “the
only relevant question should be whether the plaintiff sustained a recognisable psychological lesion”.
See Loubser & Midgley (eds) The Law of Delict 307. See also Barnard v Santam Bpk 1999 (1) SA 202
(SCA).
143 See Barnard v Santam Bpk 1999 (1) SA 202 (SCA).
144 See Barnard v Santam Bpk 1999 (1) SA 202 (SCA).
272
5.2.3 Relatives of the deceased victims of violent crime
The scheme awards compensation to the dependants or close bereaved relatives of

victims who die as a result of the injuries which they sustained in circumstances
described in paragraphs 5.2.1 above and 5.2.4 below. 145 Paragraphs 57-77 of the
scheme regulate compensation under these circumstances and hold that a dependent
or a relative may be awarded a bereavement payment, 146 a child’s payment, 147 a
dependency payment 148 and/or a funeral payment if they fall within the definition of a
“qualifying relative.”
A “qualifying relative” is defined in paragraph 59 of the UK 2012 Scheme and refers to

the spouse or civil partner 149 of the deceased who was living with the deceased in the
same household; 150 the unmarried partner of the deceased (other than a spouse or
civil partner) who was living with them in the same household and had done so for a
continuous period of at least two years immediately before the deceased’s date of
death, the former spouse or civil partner of the deceased who was financially
dependent on the deceased, as well as a parent 151 or a child 152 of the deceased.
In terms of paragraphs 61-62 of the scheme, bereavement payments of up to £11,000

may be made to qualifying relatives. This amount may be less (typically £5,500) where
the CICA is satisfied that more than one person may be eligible for a bereavement
payment in respect of the deceased. 153 Paragraph 61 of the UK 2012 Scheme
expressly excludes such a payment from being made to former spouses or partners

146 Paragraphs 61-62.
149 As understood under the Civil Partnership Act of 2004.
150 If they did not live in the same household, this must have been because of ill-health or infirmity. See
CICA UK 2012 Scheme Guide 10.

151 According to the CICA, this includes the natural or adoptive parents of the deceased, or a person
the deceased accepted in the role of parent and who provided the deceased with parental services.
See CICA UK 2012 Scheme Guide 10.
152 The definition of “child” is not limited to a person below the age of 18. It includes adult children,
unborn children of the deceased (who were conceived before the deceased’s death and born alive after
they died), or a person who the deceased accepted as their child and who was dependent on the
deceased for parental services. See CICA UK 2012 Scheme Guide 10.
273
of the deceased, or if the person was estranged from the deceased at the time of
death. 154
A child’s payment may be made to a qualifying relative in terms of paragraph 59(f) of

the UK 2012 Scheme (“a child of the deceased”) who was under 18 at the time of
death and dependent on the deceased for parental services. 155 The period to which a
child’s payment will relate begins on the date of death and ends on the day before the
child’s 18th birthday. 156 The child’s payment is £2,000 for each full year of the period
to which the payment relates, proportionally reduced for part years and is calculated
as a lump sum. 157 In addition, the CICA may also award an amount for the expenses
incurred by a child as a direct result of the “loss of parental services as a claims officer
considers reasonable.” 158
In this context, it may be noted that the UK 2012 Scheme Guide is silent on the issue
as to what impact this award may have on the dependent’s action for loss of support
as a result of the death of a breadwinner. 159 However, taken into account that the UK
2012 Scheme adopts an approach in terms of which the scheme is seen as a last
resort for compensation, it could be argued that, where a dependent has received
compensation after instituting the dependent’s claim, the CICA may withhold or reduce
an award of compensation. 160
Qualifying relatives who were financially or physically dependent on the deceased at

the time of their death may also claim a so-called dependency payment if they are able
to show the CICA that the deceased was their “main carer” 161 or if they can provide
evidence to show that the deceased was making a material financial contribution to
their upkeep. 162
154 See CICA UK 2012 Scheme Guide.

155 See also paragraph 63 of the UK 2012 Scheme.
157 See paragraphs 65-66 of the UK 2012 Scheme.
158 See paragraph 65(b) of the UK 2012 Scheme.
159 See the Fatal Accidents Act of 1976.
160 CICA The UK 2012 Scheme Guide 2; see para 98(b) of the UK 2012 Scheme.
161 See CICA UK 2012 Scheme Guide 25: “We define a main carer as the person who met the majority
of your care needs.”

274
To qualify as financially dependent, the deceased victim must have met the conditions
of paragraph 43 of the UK 2012 Scheme on the date of death. 163 This means that, at
the time of the incident, the deceased must have been in paid work, or, if he was not,
he must have been in regular paid work for a period of at least three years before the
incident. If he was not in paid work, he must have had good reasons, e.g. reasons
relating to his age or caring responsibilities. 164 A financial dependency payment will
not be made if the deceased relied on social security benefits as their main income. 165
The eligible period of payment begins on the date of death, and may end on one of
the dates set out in paragraph 69 of the UK 2012 Scheme.
Lastly, in accordance with paragraphs 75-77 of the scheme, the CICA will award
funeral payments if someone has died after sustaining criminal injuries in the
circumstances described in paragraph 5.2.1 above or paragraph 5.2.4 below.
Generally, awards of £2,500 are made in this regard and further payment will only be
made “where receipts or other satisfactory evidence is provided for the costs incurred
and where those costs are reasonable.”166
As indicated earlier, the concept of the innocent victim is central to the scheme’s effort
to narrow eligibility. Therefore, and in accordance with paragraph 28 of the scheme, if
the behaviour of the victim “led or contributed to the incident in which they were fatally
injured [the CICA] will not normally make a payment” in any of the above fatal injury
cases. 167 Furthermore, prior criminal convictions may also be taken into account and,
where the deceased’s convictions or crimes were so serious that to pay for their
funeral, or to make other payments, would be an inappropriate use of public funds, the
CICA may refuse payment. 168
163 See paragraph 70 and 43 of the UK 2012 Scheme. Paragraph 43(2) requires that the applicant: “(a)
was in paid work on the date of the incident giving rise to the injury, or, in the case of a series of
incidents, at any time during the series; (b) had been in regular paid work for a period of at least three
years immediately before the date of the incident giving rise to the injury; or (c) had a good reason for
not having been in regular paid work for the period mentioned in paragraph (b).”
167 11.
168 11.
275
In accordance with section 3(1)(c) of the Act, the relatives of a victim who suffered an
intentionally-caused violent criminal attack in the Netherlands, as well as the victim of
an intentionally-caused violent crime aboard a Dutch aeroplane or ship outside the
borders of the Netherlands and who dies as the result of that crime, are eligible for
compensation. The Dutch Fund determined that these relatives are entitled to
compensation for patrimonial as well as non-patrimonial harm. 169 Unlike the position
in the South African law of delict, a relative may also claim damages for non-
patrimonial loss in the form of grief arising from the death of a relative. 170
Section 3(1)(c) of the Act was amended in 2016 so as to expand the scope of potential
applicants in this category. 171 The amended section now provides relief also to the
relatives of someone who has died as the result of a contravention of section 6 of the
Dutch Road Traffic Act of 1994 or section 307 of the Dutch Criminal Code. The former
prohibits road traffic users from causing another person’s death through their negligent
conduct, while the latter states that any person who, through their own negligence,
causes the death of another person, shall be liable to imprisonment.
In justification of this development, reference is made to those “harrowing cases” that

falls just outside the ambit of the old section 3(1)(c) of the Act, i.e. where the death
was held to be caused through negligent conduct as opposed to intentional conduct. 172
The Dutch legislature has taken the view that the non-patrimonial harm which the
relatives suffer in the case of intentional causation of death is comparable to the non-
patrimonial harm suffered when a relative was negligently killed. In an accompanying
policy document, the Dutch Fund confirms that it will now be tasked to determine
negligence. 173 Senior officials from the Dutch Fund subsequently indicated that in
determining negligence, regard must be had to the approach adopted in Dutch criminal
law. 174
169 HSG Beleidsbundel (2017) 10-11.

170 Barnard v Santam Bpk 1999 (1) SA 202 (SCA): “The appellant’s ‘grief’ for her son mentioned in that
question was clearly not a psychiatric injury […] The appellant’s counsel correctly conceded that no
damages could be recoverable in respect of such grief.”
171 The amendment became effective on 1 July 2016.
172 MM Olman, JCD Van de Weerd & M Zoethout “Dood door schuld en het Schadefonds
Geweldsmisdrijven” (2016) Verkeersrecht 449 450.

173 HSG Bijlage bij Beleidsbundel Schadefonds Geweldsmisdrijven: dood door schuld (2016) 2-6.
174 Olman, Van de Weerd & Zoethout (2016) Verkeersrecht 449-451.
276
Section 3(2) of the Act indicates who may qualify as “relatives” in this context: the non-
legally separated spouse and registered partner of the deceased; the deceased’s
relatives by blood or marriage (provided that, at the time of the deceased’s death, he
or she wholly or partly provided maintenance to the applicant); those who lived with
the deceased within a family context and to whose maintenance the deceased
contributed through the maintenance of a shared household; blood relatives of the
deceased in the first degree and in the second degree of consanguinity (parents,
children, half-brothers and half-sisters). 175
5.2.3.3 Conclusion: relatives of the deceased victims of violent crime
Both schemes compensate the relatives of deceased victims of intentionally-caused

violent crimes. In this regard, the UK 2012 Scheme provides a much more thorough
account of the conditions that are required to be met as well as the amounts payable.
In addition, the UK 2012 Scheme appears to be much more generous in the
compensation it provides in this context: whereas the Dutch Fund offers up to €5,000,
the UK 2012 Scheme provides up to £11,000 for fatal criminal injury payments. 176
However, the recent expansion of the fund’s liability with regard to the negligent
causation of a relative’s death may hold considerable financial implications for the
Dutch Fund.
It is suggested that the proposed fund should also compensate the close relatives of
deceased victims of intentionally-caused violent crimes. It is recommended that the
definition of a “close relative” should be similar to the definition of a “qualifying relative”,
as defined in paragraph 59 of the UK 2012 Scheme.
The purpose behind compensation within this context should be to provide financial
support where the death of a breadwinner has caused a loss of that support. Put
differently, the proposed fund should aim to provide compensation in situations similar
to the ones where the UK 2012 Scheme makes dependency and child payments. This
would also be in line with financial protection offered through the common-law claim
for loss of support, with the major difference being the fund’s insistence on the

176 See HSG Letsellijst (2016) 1, 8; Annexure E of the UK 2012 Scheme.
277
intentional causation of the breadwinner’s death. In addition, the common-law

requirements for establishing a common-law claim for the loss of support suffered as
a result of the death of a breadwinner – i.e. a legal duty of support on the part of the
deceased breadwinner and a reciprocal right to such support on the side of the victim
– may also be used by the fund to determine the eligibility of a prospective victim’s
claim in circumstances where such a victim does not fall within the definition of “close
relative”.
It is suggested that the proposed fund should not follow the direction of the Dutch Fund
regarding the cover provided in case of the negligent causation of a relative’s death
and should focus solely on instances where relatives were intentionally killed as the
result of a violent crime. In the first place, the relatives of people who were killed as a
result of negligently-caused motor vehicle accidents are currently provided
compensation under the RAF Act and will also be provided cover under the proposed
RABS, if it were to be enacted. Furthermore, if the legislature were to recognise
compensation for the victims of negligently-caused accidents generally, it would be in
conflict with the ultimate purpose of the compensation, namely compensating the
victims of intentionally-caused violent crimes and the question may therefore arise
whether the fund should not provide cover to the victims of all negligently-caused
crimes. However, such a potential expanded liability of the proposed fund would be
undesirable from a financial perspective.
5.2.4 People who sustain injuries as a result of taking risks
The UK 2012 Scheme compensates those who sustain a criminal injury which is
directly attributable to their taking an exceptional and justified risk in apprehending an
offender, preventing a crime, containing or remedying the consequences of a crime,
or assisting a constable who is acting for one or more of the aforementioned
purposes. 177 Broadly stated, the purpose behind this paragraph is to compensate
those who are accidentally injured while taking an exceptional and justified risk to
177 See paragraph 5(1) of the UK 2012 Scheme.

278
prevent crime. 178 These would typically include individuals who engage in law
enforcement who take exceptional risks, but the provision may also apply to other
members of the public. 179
The scope of protection offered is limited by paragraph 5(2), which stipulates that, if a
risk has been taken “in the course of a person’s work”, it will not be considered to be
exceptional if it would “normally be expected of them in the course of that work.” The
CICA provides some assistance in interpreting the meaning of “exceptional” and
“justified”: 180 “[W]e will consider if the risk taken was unusual and was not something
which you had been trained to deal with. When considering if the risk was justified we
will consider all the circumstances, including the seriousness of the situation, and
whether there was an immediate threat to those involved.”
This paragraph therefore limits the number of claims that may be instituted by police
officers. 181 Greer remarks that this is a unique feature of the UK schemes and that it
“has no equivalent in the European Convention”. 182 The Dutch Fund, for instance,
does not make express provision for this category of victim. Greer explains the history
and purposes behind this provision as follows: 183
“[D]uring the 1970’s it was found that many claims were being made under this part of the Scheme
by police officers for what were not really ‘criminal’ injuries. As a result the Scheme was amended
in 1979 to provide that when the injury arose accidentally out of an act of law enforcement,
compensation would not be paid ‘unless the Board are satisfied that the applicant was at the time
taking an exceptional risk which was justified in all the circumstances’ […] This, too, is not an
easy test to apply. But its effect has been that police officers are now much less likely to obtain
compensation under the Scheme for injuries sustained in the process of law enforcement. The
impact on an ordinary member of the public who attempts to prevent a crime or arrest an offender
is much less significant, since it will not normally be difficult to persuade the Board that he or she
was taking an ‘exceptional’ risk.”
5.2.4.2 Conclusion: people who sustain injuries as a result of taking risks
Arguably, it would not be essential to provide cover for this category of victims if the
South African legislature does decide to enact a compensation scheme for crime
180 See the UK 2012 Scheme Guide available at <https://www.gov.uk/guidance/criminal-injuries-
compensation-a-guide> (accessed on 10 April 2017).

182 Greer Compensating Crime Victims 596.
183 597.
279
victims. It is true that police officers, who by virtue of their employment are required to
take risks, are not eligible for compensation from the Compensation for Occupational
Injuries and Diseases Act 130 of 1993 (“COIDA”) in the event that they suffer injuries
as a result of taking a risk in the pursuit of an offender or the prevention of a crime. 184
However, they nevertheless receive compensation from their employer in such event:
“Claims for patients that have been injured on duty are paid by the South African Police
Service (SAPS) and not the Compensation Commissioner. [The employee] will
therefore not experience problems with the payment of [their] accounts if you submit
them to SAPS.”185
Furthermore, other members of the public who take risks in preventing crime and who
as a result fall victim to intentionally-caused violent crime, will in any event be eligible
to receive compensation under the general proposed eligibility criteria discussed in
paragraph 5.2.1 above.
If the category is not included in the proposed fund, it might be that a small number of
crime victims may not be compensated. For instance, suppose X burgles Y’s home
and Z (Y’s neighbour) attempts to capture X, only to sustain bodily injuries while
accidentally stumbling in his attempt to do so. Without an “exceptional and justified
risk” category, Z will likely not be eligible for compensation from the proposed fund,
because, arguably, his injuries were not intentionally caused by X and/or his injuries
were not “directly attributable” to a violent crime.
Nevertheless, such an exclusion may be justified on the basis of financial constraints.

Indeed, by including such a category, the UK 2012 Scheme seeks to award the
behaviour of certain people, i.e. those who voluntarily engage in risky conduct for the
benefit of a third party. However admirable that may be, it is subordinate to what should
perhaps be regarded as the primary goal of the proposed fund (if it were to be
enacted), namely the compensation of victims of intentionally-caused violent crimes.
184 Section 1(xix)(iii) of the COIDA excludes cover in respect of a member of the South African Police
Force while employed in terms of section 7 of the Police Act 7 of 1958 who is on “service in defence of
the Republic” as defined in section 1 of the Defence Act 44 of 1957.
185 Polmed “Attention Service Providers” available at <http://www.polmed.co.za/injury-on-duty-claims/>
(accessed on 27 June 2017). The process followed by the SAPS to determine whether a police officer’s
injury took place during the course and scope of their employment will be similar to the process followed
by the COIDA.
280
If the proposed fund were to be enacted, the legislature should aim to ensure that it is
sustainable and that it offers compensation to crime victims over the long-term. This
will not be possible if the proposed fund were made to compensate an extended variety
of categories of claimants who are victims of accidents. Furthermore, it may be argued
that the harm suffered by this category of risk-takers are simply too far removed from
the actual criminal conduct so that it may be said that, taking into account the proposed
goal of the fund, it would be unreasonable to hold the fund liable for the voluntary
decision of the risk-taker to assist his neighbour. In other words, it may be argued that
this category of claimant should not be compensated by the proposed fund on the
basis of remoteness, or legal causation.
5.2.5 Conclusion: categories of victims eligible to institute a statutory claim

against the proposed compensation fund
In both the UK and the Netherlands, the legislature has enacted publicly-funded
compensation schemes aimed at recompensing the victims of intentionally-caused
violent crimes, the relatives of such deceased victims and those who witness a violent
crime. In the UK a further category is recognised (those who take exceptional risks in
preventing crime), while the Dutch Fund has looked to compensate a limited class of
victims whose harm has been brought about in a negligent manner.
In this section, the approaches adopted by the different schemes have been set out
and an attempt was made to provide practical suggestions for the legislature, if it
indeed decides to develop the law of delict by enacting a statutory compensation fund
for victims of violent crime.
In summary, it is suggested that the proposed fund should focus primarily on the
compensation of victims of intentionally-caused violent crimes that were committed in
South Africa (see further paragraph 5.10.2 below); the close relatives of victims who
die as a result of such crimes and those who have witnessed violent crimes, or
experienced its immediate aftermath. As indicated above, it should exclude from its
cover the category of risk-takers recognised by the UK 2012 Scheme.
281
The fund should expressly state that some acts will be regarded as violent crimes and
for further guidance, regard must be had to the approach adopted in criminal law. The
focus of the proposed scheme should be on the compensation of innocent victims who
did not contribute to their own harm. Lastly, the fund should insist on a direct causal
relationship between injury and conduct.
A concluding remark may be made about the UK 2012 Scheme. Ever since the first
compensation scheme was created in 1964, the UK legislature has struggled to
delineate the exact scope of eligibility. 186 It commences without any clear definition
and later provided a rather vague definition (a “crime of violence (including arson and
poisoning”), 187 which the compensation authorities and courts apparently struggled to
apply in a consistent manner.
When compared to earlier schemes, the UK 2012 Scheme displays the legislature’s
intention to tighten eligibility criteria 188 so that payments are not made in situations that
fall outside parameters of the scheme’s core purpose, namely to compensate those
who suffer serious physical or mental injury as the direct result of deliberate violent
crime of which they are the innocent victim. 189 It also gives a clearer indication of what
the eligibility criteria is, e.g. for the first time providing a definition of a “crime of
violence”.
Although such a narrowing of the scheme’s scope may be regarded as harsh because
it will exclude certain victims of other crimes, it may arguably be justified on the basis
of the scheme’s financial position and the availability of economic resources. 190
Ultimately, because financial resources are limited and South Africa faces many other
186 Duff (1989) Modern Law Review 518-519.

187 Duff (1989) Modern Law Review 526.
188 For another example of where the eligibility criteria has been narrowed, see paragraph 2(1)(c) of
Annexure B as read against the background to paragraph 4 of the UK 2012 Scheme. It seems that
conduct may amount to a crime of violence if it involves a threat of violence against the direct victim
and causes that person fear of immediate violence in circumstances which would cause a person of
reasonable firmness to be put in such fear. This is a notable departure from earlier schemes, which
“provided that applicants who suffered mental but no physical injury could be compensable where they
were ‘put in reasonable fear of immediate harm’ by the commission of a crime of violence, whether or
not they were personally threatened.” See Miers (2014) Legal Studies 250.
189 Ministry of Justice Getting it Right for Victims and Witnesses 50-52; Ministry of Justice Getting it
Right for Victims and Witnesses: Government Response 40-41; Miers (2014) Legal Studies 242-245.
282
socio-economic challenges, 191 the proposed fund cannot sustain a potentially

unlimited class of eligible claimants.
In paragraph 2.2.1.2.3 in chapter 2 above, the judicial development of the vicarious

liability doctrine by the Constitutional Court (“CC”) was criticised insofar as it was
argued that making the standard test for vicarious liability dependent upon the nature
of the legal interest at stake could potentially produce arbitrary outcomes. Against that
background, it may be asked whether the same criticism could be levelled against the
suggested exclusion of non-violent crimes, non-intentional crimes and property-
related crimes from the scope of the proposed scheme.
In this regard, it is argued that the proposed narrow eligibility criteria, and
consequential exclusions of certain crimes from the ambit of the proposed scheme,
are not susceptible to the same criticism. This is because the eligibility criteria and
concomitant exclusion of certain categories of crime may be justified on the basis of
policy-based reasons, not the least of which include the socio-economic challenges
mentioned above (particularly the fact that the limited financial resources in South
Africa are supposed to be used in respect of a series of socio-economic challenges)
as well as the fiscal constraints that may be applicable in connection with the proposed
scheme. 192
Indeed, as a comparative overview of foreign crime victim compensation schemes

indicates, 193 statutory compensation funds generally limit their attention to specific
categories of crime (e.g. intentionally-committed violent crimes), because it would
simply be unaffordable to provide compensation to all types of crimes.
It is advised that the South African legislature should heed the lessons learned by the
UK legislature: it appears to be advisable to have a more constrained approach
regarding a scheme’s scope of application and, when setting out eligibility criteria for
a fund, it would be recommendable to provide as much clarity as possible for the sake
of consistency and certainty when it comes to its application.
191 See chapter 1.

192 This suggestion is also in line with the recommendations made in respect of the approach that the
proposed fund should adopt in focusing on blameless victims – see further paragraph 5.2.1.2.3 above.
193 See generally Greer Compensating Crime Victims; Miers (2014) International Review of Victimology.
283
5.3 The nature of the harm recoverable from a statutory compensation fund for
crime victims
An important issue to be considered by any legislature contemplating the enactment

of a compensation fund for crime victims is the nature of the harm that ought to be
compensated by the fund. Should it compensate only patrimonial harm or should it
also provide cover for non-patrimonial harm?
5.3.1 The UK 2012 Scheme
The type of harm recoverable under the UK 2012 Scheme is determined by the tariff
of injuries set out in the scheme’s Annexure E. Part A focuses on bodily and mental
injuries and Part B contains a series of injuries arising from sexual and physical abuse
and which are compensable under the compensation scheme. Broadly speaking, the
scheme provides compensation for both patrimonial and non-patrimonial harm. It
recognises the following categories of patrimonial harm: loss of earnings, the financial
costs associated with the bodily injury, as well as certain payments made in respect
of the death of a relative (bereavement payment, dependency payments, child
payments and funeral payments). 194 The fund also compensates non-patrimonial
harm in the form of a mental injury arising from the violent crime. 195
Annexure E of the UK 2012 Scheme first sets out different levels of compensation that
may be awarded: from A1 (£1 000) to A20 (£250 000) for physical and mental injuries
and from B1 (£1 000) to B15 (£44 000) for injuries arising from sexual and physical
abuse. 196 Part A of the tariff of injuries consists of a table that provides a description
of the injury, the level of compensation that it merits and the standard amount of
compensation in that regard. It deals with bodily injuries (e.g. injuries to the head and
neck, upper limbs, torso and lower limbs) as well as mental injuries. Part B focuses
194 Paragraphs 57-77 of the UK 2012 Scheme.

195 See paragraphs 4-9 of the UK 2012 Scheme; Annexure E of the UK 2012 Scheme.
196 Paragraph 31 of the UK 2012 Scheme states that the “maximum award which may be made under
this Scheme to a person sustaining one or more criminal injuries directly attributable to an incident,
before any reduction under paragraphs 24 to 28, is £500,000.”
284
specifically on sexual abuse injuries and has a similar structure. It deals with fatal
criminal injuries, physical abuse of adults and children, general sexual abuse and
sexual offences where the victim is a child.
5.3.2 The Dutch Fund
The Dutch Fund similarly provides compensation for patrimonial and non-patrimonial
harm for the bodily and psychiatric injuries which victims of an intentionally-caused
violent crime have suffered. Section 3 of the Dutch Act states that compensation may
be awarded for the serious bodily or psychiatric injuries which they have suffered as
the result of violent criminal conduct. The Act itself, however, provides no indication
as to which injuries would be regarded as serious and therefore compensable. Instead,
the fund has developed a list that provides this information (“Letsellijst”). 197 The
Letsellijst sets out the list of compensable injuries and amounts claimable under the
scheme. Broadly speaking, the Dutch Fund compensates the following instances of
patrimonial harm: financial costs arising from bodily injuries and loss of support. 198 The
fund also compensates non-patrimonial harm in the form of a psychiatric injury that
arises from the violent crime. 199
More specifically, the Letsellijst identifies six categories of injuries, with each category
being linked to a fixed amount receivable from the fund. 200 The seriousness of the
crime, as well as the circumstances under which the crime has been committed will
determine into which category the relevant crime will be placed. 201 An injury that falls
in the lowest category (category 1) will entitle the victim to €1 000, while victims of the
highest category (category 6) may receive €35 000, which represents the highest
amount receivable under the Act. 202
The Letsellijst consists of two parts. The first concentrates on bodily injuries while the
second focuses on psychiatric injuries. The bodily injuries section provides guidelines
197 HSG Letsellijst (2016). See also HSG Letsellijst (2015).

198 HSG Letsellijst (2016) 2-7.
199 8-10.
200 HSG Letsellijst (2016) 1; HSG Beleidsbundel (2016) 8.
201 HSG Letsellijst (2016) 1; HSG Beleidsbundel (2016) 8.
202 See further the HSG Letsellijst (2016) 1.
285
to establish whether an injury may be regarded as serious enough to merit

compensation under the Act and, if it is indeed serious, into which of the six categories
of compensation the injury should be allocated. 203 After stating the guidelines, the
Letsellijst provides a detailed list of bodily injuries that are expressly recognised by the
Dutch Fund together with an indication of the category into which they fall. 204 The
guidelines will therefore only be used if the victim’s bodily injury does not appear on
this second part of the bodily injury list.
The second part of the Letsellijst follows a different pattern. First, the Dutch Fund sets
out a list of violent crimes in respect of which the fund will presume psychiatric injuries
from being suffered by the victim and in respect of which an applicant will not be
required to give medical information to the fund prior to being awarded any
compensation. 205 An indication is also given of the category of compensation that may
be ascribed to these presumed psychiatric injuries.
For the assessment of psychiatric injuries in all other cases, the fund requires medical
information on the basis of which it will establish whether the injury is serious enough
to merit compensation. 206 In this regard, the Letsellijst sets out broad guidelines to
determine when psychiatric injuries would be serious enough to receive
compensation, and also provides a general outline of the category of compensation
into which the injury will fall.
5.3.3 Harm covered under the RAF Act and the COIDA
Section 17(1) of the RAF Act states that compensation may be claimed for “any loss
or damage which the third party has suffered as a result of any bodily injury to himself
or herself or the death of or any bodily injury to any other person caused by or arising
203 HSG Letsellijst (2016) 1. For example, the guidelines for injuries that may typically be regarded as
category 1 injury maintain that they are bodily injuries requiring treatment and which are accompanied
by temporary dependency, or bodily injures in which 24-hour hospitalisation is required or which are
accompanied with permanent disfigurations A category 3 injury is a bodily injury, however, that creates
a permanent limiting obstacle to performing one’s daily professional or business function whereas a
category 4 bodily injury is an injury similar to a category 4 injury, but where the nature and the
consequences are more serious than in category 3.
204 See HSG Letsellijst (2016) 3-7 for the full list.
205 See HSG Letsellijst (2016) 8-9 for the full schedule.
206 HSG Letsellijst (2016) 10.
286
from the driving of a motor vehicle”. Case law illustrates that harm caused by bodily
injury refers to both patrimonial and non-patrimonial harm. 207 The following heads of
damages is generally regarded as recoverable instances of patrimonial harm which
may result from a bodily injury in the context of a motor vehicle accident: medical and
hospital costs, loss of income, loss of earning capacity, travelling and transport costs
and the costs of a medical assistant, servant, helper or manager. 208 A claim may also
be instituted against the RAF for the loss of support which a dependent has suffered
arising from the negligent and wrongful death of the breadwinner in a motor vehicle
accident. 209 The RAF’s liability for patrimonial harm is limited, which will be discussed
in paragraphs 5.5.1.1 and 5.7 below.
With regard to non-patrimonial harm, a motor vehicle accident victim may also claim
compensation for the pain and suffering arising from a bodily injury caused by a motor
vehicle accident. This refers, on the one hand, to compensation for the physical pain,
discomfort and suffering on account of a physical impairment of the body or the
causing of emotional shock. 210 On the other hand, a motor vehicle accident victim may
also claim compensation from the RAF for loss in the amenities of life. 211 The RAF’s
liability for non-patrimonial harm is limited and will be discussed in paragraphs 5.5.1.1
and 5.7 below. It is important to note that the proposed Road Accident Benefit Scheme
(“RABS”) will not cover non-patrimonial harm. 212
Unlike the RAF, but similar to the proposed RABS, the COIDA only provides cover for
patrimonial harm and excludes liability for non-patrimonial harm. 213 The patrimonial
207 Loubser & Midgley (eds) The Law of Delict (2012) 52-54, 296, 303-310; RAF “The Road Accident
compensates for the following” available at <http://www.raf.co.za/Product-and-Services/Pages/

Compensate.aspx> (accessed on 11 April 2017).
208 HB Klopper Road Accident Fund: The Practitioner’s Guide (2009) paras 3.3.1-3.3.5.
209 Paixão v Road Accident Fund 2012 (6) SA 377 (SCA). There is some uncertainty as to whether a
dependant has the same right where a breadwinner is only injured and not killed. See Loubser & Midgley
(eds) The Law of Delict 292-293; Brooks v Minister of Safety and Security 2009 (2) SA 94 (SCA); De
Vaal v Messing 1938 TPD 34. However, a discussion of this matter falls outside the scope of this
dissertation.
210 JM Potgieter, L Steynberg & TB Floyd Law of Damages (2012) 506-509.
211 See generally Potgieter et al Damages 510-512; Loubser & Midgley (eds) The Law of Delict (2012)
52-54, 296, 303-310; RAF “The Road Accident compensates for the following” available at
<http://www.raf.co.za/Product-and-Services/Pages/Compensate.aspx> (accessed on 11 April 2017).
212 Minister of Transport Policy Paper (2011) 10.
213 See the COIDA generally; MP Olivier “Social Security: Core Elements” in WA Joubert & JA Faris
(eds) LAWSA 13(3) second edition (2007); JJ Jansen van Vuuren A Legal Comparison between South
African, Canadian and Australian Workmen’s Compensation Law Unpublished LLM thesis University of
South Africa (2013) 78; Jooste v Supermarket Trading (Pty) Ltd 1999 (2) SA 1 (CC) paras 13-15.
287
harm which the COIDA covers includes predominantly financial loss arising from bodily
injuries or diseases and the pure economic loss which a dependant suffers after a
breadwinner died as a result of an accident that occurred during the course and scope
of his employment. 214
5.3.4 Conclusion: recommendation in respect of the nature of the harm that

should be recoverable from the proposed fund
Both foreign schemes aim to compensate patrimonial and non-patrimonial harm.

However, the scope of those schemes is nevertheless limited by providing a tariff of
specific injuries that is compensable. 215 Furthermore, the scope of the compensation
fund’s coverage is sought to be limited through establishing a narrow eligibility criteria
(in the case of the Dutch Fund) and tightening the criteria (in the case of the UK 2012
Scheme). Also, as we shall see in paragraphs 5.5.1.1 and 5.7 below, the schemes
place a limit on the amounts recoverable. It is recommended that the proposed fund
should compensate both patrimonial and non-patrimonial harm, provided that the fund
adopts similar strategies in establishing narrow eligibility criteria and limitations
regarding its liability. The proposed fund should cover both forms of harm so as to
bring it in line with the trends adopted by foreign compensation schemes and because
this will give recognition to the scope of the crime victim’s injury. The reasons for the
suggested limitations revolve around the financial viability of the proposed fund and
will be discussed in further detail in especially paragraph 5.7 below.
5.4 Nature of the perpetrator’s state of mind and conduct
Another question which ought to be considered with regards to establishing a statutory

compensation fund for crime victims is whether it should cover only injuries arising
from intentional criminal conduct, or also harm arising from negligent criminal conduct.
214 See section 54 of the COIDA. See Schedule 2-4 for a list of the injuries and diseases that may be
compensated and the method of calculation of the compensation.
215 See further paragraphs 5.5.1.1 and 5.7 below.
288
Paragraph 2(2) of Annexure B of the scheme gives meaning to the term “crime of
violence” by stating that an act or omission will not constitute a crime of violence unless
it is done either “intentionally or recklessly.” This requirement was not stated expressly
in either the UK 2001 Scheme or the UK 2008 Scheme. 216 According to Miers, this
means that an applicant is therefore required to provide evidence to show that the
assailant intended or was reckless as to the elements of a crime of violence. 217
However, the CICA states that what is essentially required is that it must be satisfied
that there is sufficient evidence “to warrant a finding that the injury was caused by a
crime of violence, rather than being an accident.”218
The UK 2012 Scheme does not expressly state whether the same meaning should be
ascribed to intent and recklessness as under English criminal law. The UK 2012
Scheme Guide, however, states that an act would “constitute a crime of violence if
there was intention on the part of the assailant to cause you harm, or if the injury
sustained was because of the intentional or reckless behaviour of an individual who
was likely to have foreseen that their actions could cause significant injury to another,
and proceeded to act regardless of this outcome.”219
Arguably, the reference to intention includes both direct intention 220 and oblique
intention. 221 The exact meaning of recklessness for the purpose of English criminal
law has been the centre of academic debate and falls outside the scope of this
dissertation. 222 Based on the extract above, it is submitted that recklessness seems
to correspond with the form of intent that is labelled dolus eventualis in South African
criminal law, i.e. it exists where the perpetrator, in executing a plan to cause harm,
216 Paragraph 12 of both the UK 2001 Scheme and the UK 2008 Scheme.
218 253.
220 This refers to the scenario where the defendant is desirous in bringing about the consequences of
his actions. See R v Mohan [1] [1976] QB 1; [1975] 2 All ER 193; D Ormerod, JC Smith & B Hogan
Smith and Hogan’s Criminal Law 14 ed (2015).
221 This deals with the scenario where the defendant foresees the consequences of his actions as
certain, although it is not desired for its own sake, and nevertheless goes ahead with his actions.
See also Ormerod et al Criminal Law.
222 See R v Cunningham [1957] 2 QB 396; Metropolitan Police Commissioner v Caldwell [1982] AC
341; R v G [2003] UKHL 50; S Cunningham “Recklessness: being reckless and acting recklessly” (2010)
21(3) King’s Law Journal 445-467; Ormerod et al Criminal Law.
289
foresees a wrongful consequence that is not desired, but nevertheless reconciles

himself with the possibility that it might arise and continues to act. 223
It may also be noted that the UK 2012 Scheme will exceptionally treat something as a
crime of violence, regardless of the fact that the assailant is “not capable of forming
the necessary mental element due to insanity” 224 or if the latter is a “child below the
age of criminal responsibility who in fact understood the consequences of their
actions.”225 In other words, in exceptional cases, the capacity of the alleged criminal
to be at fault will not be taken into account and compensation may nevertheless be
paid. Thus, the scheme may therefore award compensation on what appears to be a
strict liability basis, although it is not clear in what circumstances (other than those
expressly stated) this would be competent.
As indicated above, section 3(1) of the Dutch Act refers to intentionally-caused violent
crimes. The Beleidsbundel confirms that, for the purposes of compensation under the
Act, intention has the same legal meaning as under Dutch criminal law. This, briefly,
means that the perpetrator must have desired to bring about the criminal injury wilfully
while conscious of the wrongfulness of his conduct. 226 Furthermore, Dutch criminal
law appears to draw the same distinction that South African criminal law does between
dolus directus (“opzet met bedoeling”), dolus indirectus (“opzet met
noodzakelijkheidsbewustzijn”) and dolus eventualis (“voorwaardelijke opzet”). 227 The
fund specifically states that dolus eventualis would also satisfy the requirement set out
in section 3 of the Dutch Act. 228
223 Loubser & Midgley (eds) The Law of Delict 110-111; Burchell Criminal Law 346-347.
224 Paragraph 3(1) of Annexure B of the 2012 Scheme.
225 Paragraph 3(1).
227 See Burchell Criminal Law 346-347; Loubser & Midgley (eds) The Law of Delict 110-111. Dolus
directus is where the perpetrator meant to bring about the specific prohibited consequences in question.
Dolus indirectus refers to the situation where, in effecting a specific consequence, the perpetrator
foresees another harmful consequence that will inevitably also be realised by his conduct. Lastly, dolus
eventualis describes the scenario where the perpetrator, in executing a plan to cause harm, foresees a
wrongful consequence that is not desired, but nevertheless reconciles himself with the possibility that it
might arise and continues to act.
290
In its Beleidsbundel, the fund states that harm arising from a game between children,
traffic accidents and injuries suffered by voluntarily taking part in a sporting activity will
not ordinarily be regarded as having been intentionally caused. 229 The fund also
confirms that injuries brought about as the result of negligent conduct will not be
awarded compensation. 230 However, as discussed in paragraph 5.2.3.2 above, the
relatives of deceased victims, who have been killed as the result of negligent conduct
that contravenes section 6 of the Road Traffic Act or section 307 of the Dutch Criminal
Code, will be allowed to institute a claim for compensation.
5.4.3 Conclusion: recommendation regarding the nature of the perpetrator’s

state of mind and conduct
It would appear as though the majority of the crime victim compensation schemes limit
compensation to criminal injuries that were caused through intentional conduct. 231 The
predominant reason for the exclusion of criminal injuries caused by negligence would
be the financial interest in limiting the scope of the fund’s exposure, while the exclusion
of such claims may also be explained by the fact that “the effects of accidental injury
and death are well covered by other forms of social insurance”. 232 For example, in the
South African context, those who suffer harm arising from the negligent causation of
another person’s death through the driving of a motor vehicle may approach the RAF
for compensation.
For these reasons, it is proposed that the availability of a statutory claim be limited so
as to ensure that the proposed fund will compensate only the victims of intentionally-
caused violent crimes.
229 5.
230 5.
231 SALRC A Compensation Fund for Victims of Crime 80-81; European Council Directive 2004/80/EC
of 29 April 2004 available at <http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex: 32004L0080>

(accessed on 11 April 2017); Greer Compensating Crime Victims.
291
5.5 The potential impact of awarding a statutory claim against a compensation

fund on liability under the common law of delict
If a statutory compensation fund is established from which crime victims are allowed
to claim compensation, what should the role of the common law of delict be in this
context? Should a crime victim retain his common-law right to claim damages in delict
from the actual wrongdoer for the remainder of the harm not covered under the
proposed fund, or should the victim’s common-law claim against the wrongdoer be
abolished?
In answering this question and before setting out the position under the Dutch Fund
and the UK 2012 Scheme, regard may be had to the approaches adopted in existing
South African statutes that have developed the law of delict by the establishment of a
statutory compensation fund.
5.5.1 South African statutes that have developed the law of delict
5.5.1.1 The RAF Act
The RAF Act was amended by the Road Accident Fund Amendment Act 15 of 2005.
Before its amendment, section 21 of the RAF Act essentially provided that, “where no
claim lay against the Fund or an agent, a third party retained the common-law residual
claim to recover losses not recompensable under the RAF Act from a
wrongdoer.” 233 However, the amended section 21 abolishes this common-law right.
The Constitutional Court (“CC”) explained the effect of the amendment as follows: “In
plain language it provides that no claim for compensation arising from the driving of a
motor vehicle shall lie against the owner or driver of a motor vehicle or against an
employer of the driver.” 234
Although the limitation of claims will be discussed in further detail in paragraph 5.7
below, it should be noted that, prior to its amendment, section 17 of the RAF Act
obliged the RAF to compensate a motor vehicle accident victim in full. 235 In contrast,
233 Law Society of South Africa v Minister for Transport 2011 (1) SA 400 (CC) para 26.
234 Para 26.
235 Para 27.
292
claims instituted by passengers who were injured due to the negligent driving of a
motor vehicle in which they were being conveyed were limited.
The amended section 17 limits the obligation of the RAF to compensate a victim in
various important ways that are connected to the CC’s finding on the abolition of the
victim’s common-law claim for residual harm. First, it limits damages for non-
patrimonial harm to cases where the victim suffers a “serious injury”. 236 Secondly,
damages for patrimonial harm are restricted insofar as the compensation for loss of
earnings or support falls to be calculated, irrespective of actual loss, on the basis of a
maximum annual income. 237 Lastly, the limitations on passenger claims, a prominent
exception to the uncapped liability under the old RAF regime, were repealed. 238 Of
course, this means that passengers whose claims were limited in the past now stand
to be recompensed on the same basis as all other victims. 239
In Law Society of South Africa v Minister for Transport (“Law Society”), 240 the CC had
to consider a constitutional challenge in respect of the amended sections 17 and 21
of the RAF Act. With regard to the latter, the applicants argued that the abolition of the
victim’s common-law claim failed to comply with the constitutional principle of
rationality. They argued that, by abolishing the residual common-law claim, the new
scheme would fail to provide the fullest possible protection to victims of road
accidents. 241 The new scheme, they argued, would confer immunity on negligent
drivers against all residual common-law claims by their innocent victims, while the
latter would be left under-compensated because the new scheme capped their
claims. 242
The Minister of Transport countered that the abolition was rational on the basis of the
following reasons. He first argued that the legislative change was made necessary “by
an ever-growing funding deficit of accident claims”. 243 Despite the removal of a cap on
passengers’ claims, the new scheme would enable financial sustainability because all
236 Para 27.

237 Para 27.
238 Para 27.
239 Paras 27-28.
240 2011 (1) SA 400 (CC).
241 Para 40. See also paragraph 3.3 in chapter 3 above, where the need to provide social security was
discussed as a justificatory motivation for the enactment of motor vehicle legislation.

242 Para 40.
243 Para 41.
293
victims’ claims were significantly limited by the amended section 17. 244 Secondly, he
contended that the amendments were rational because there was a “constitutional
obligation to remove arbitrary forms of differentiation in the compensation of accident
victims” 245 and that it was therefore necessary to remove the limitation on passenger
claims. However, this could only be financially possible if the section 17 limitations
were introduced.
Thirdly, it was argued that the new system of compensation for road accident victims
“must be integrated into a comprehensive social security system that offers life,
disability and health insurance cover for all accidents and diseases.”246 In the
Minister’s view, a fault-based common-law system of compensation for road accident
victims “would be at odds with a comprehensive social security model.” 247 It was
argued that the amendments to sections 17 and 21 were the first step towards the
reform that was required, 248 i.e. “an interim measure towards the restructuring of the
Fund’s scheme into one which pays compensation on a no-fault basis.” 249 To achieve
this, the Minister argued, the common-law claim had to be abolished: “the retention of
the common-law claim does not sit well with a social security compensation system
that aims to provide equitable compensation (as distinct from the right to sue for
compensation) for all people, regardless of their financial ability.” 250
The applicants objected to the respondent’s attempt to rationalise the abolition on the
basis that its continued existence did not influence the financial viability of the scheme
whatsoever. 251 Abolishing the claim did not further the basic needs of every victim
because it did not contribute towards the funding of the RAF. Indeed, the applicants
contended that there was “no proper relation between the objects of the scheme and
the means it invokes.”252 The CC seemed to agree with this argument insofar it could
not be denied that the abolition of the residual common-law claim did not worsen or
244 Paras 42-44.

245 Para 41.
246 Para 45.
247 Para 45. See also Minister of Transport Policy Paper (2011) and paragraph 3.4 in chapter 3 above,
where the difficulties in proving fault was discussed as a justification for the development of the law of
delict.
248 Para 46.
249 Para 46.
250 Para 50.
251 Para 47.
252 Para 47.
294
improve the financial standing of the RAF. 253 Indeed, damages recoverable through
the residual common-law claim, and the costs related to its pursuit, fall outside the
funding remit of the RAF. 254
Notwithstanding this argument, Moseneke DCJ held that the abolition of the claim was
indeed justifiable and rational. The court emphasised that it was important to see the
abolition of the common-law claim against the broader background of reform of the
entire scheme. 255 It had to be remembered that a cap was placed on various heads of
damages and that all claims for non-patrimonial damages that do not arise from
“serious injury” were now to be excluded. 256 However, without legislative immunity
provided for negligent motorists, the victims of motor vehicle accidents would be able
to claim from them the damages which the RAF now excluded or limited. In other
words, “negligent motorists would have to bear the risk of substantially increased
residual claims from accident victims.” 257 The CC held as follows: 258
“The colossal risk to which the new cap exposes all drivers (from which the Fund would previously
have protected them by paying full compensation), as against the relatively small inattentiveness
or oversight that could give rise to the risk, lends further support to the abolition of the common-
law action. What is more, the retention of the common-law claim does not sit well with a social
security compensation system that aims to provide equitable compensation (as distinct from the
right to sue for compensation) for all people, regardless of their financial ability. There are two
aspects to this incongruity. The first is that the common-law claim would be actually recovered
only from those drivers or owners who are capable of in fact paying compensation or who are
able to afford the required insurance. In my view, the number of drivers and owners who would
be able to pay would be very small. It would be pointless for any person to sue in circumstances
where actual recovery would not result. The second consideration is that the right to sue would
be available only to those who can afford to pay legal fees or who are granted legal aid. And it is
unlikely that legal aid would be granted to people who have claims that are in fact irrecoverable
because of the inability of the driver or owner to pay. These two factors would have a negative
effect on an equitable compensation system if the common-law right of action were to be
retained.”
The CC reminded the parties that it should not lose sight of the “primary and ultimate
vision of the Fund”, 259 which was to “render a fair, self-funding, viable and more
effective social security service to victims of motor accidents.” 260 It concluded that the
interim scheme was a necessary step in that direction and that the “abolition of the
253 Para 48.

254 Paras 48-49.
255 Para 49.
256 Para 49.
257 Para 49.
258 Para 50.
259 Para 54.
260 Para 54.
295
common-law claim is a necessary and rational part of an interim scheme whose

primary thrust is to achieve financial viability and a more effective and equitable
platform for delivery of social security services.” 261
A detailed, critical analysis of this judgment, and of the impact that it may have on
victims of motor vehicle accidents, falls outside the ambit of this dissertation. However,
some of the aspects of the CC’s reasoning will be discussed in paragraph 5.5.4 below,
where a recommendation is made for the route which the legislature may take, if it
elects to enact a statutory compensation fund for crime victims.
5.5.1.2 The COIDA
As discussed in chapter 3, the COIDA effectively replaced the employer’s common-

law liability with the limited liability of a no-fault based statutory compensation fund to
which the employer contributes, in circumstances that make it unnecessary to prove
fault on the part of the employer. 262 Section 35(1) of the Act stipulates as follows:
“No action shall lie by an employee or any dependant of an employee for the recovery of damages
in respect of any occupational injury or disease resulting in the disablement or death of such
employee against such employee’s employer, and no liability for compensation on the part of
such employer shall arise save under the provisions of this Act in respect of such disablement or
death.”
This section has a twofold purpose: it expunges the common-law claims of employees
against their employer and it limits an employer’s liability to pay compensation. 263 In
Jooste v Score Supermarket Trading (Pty) Ltd (“Jooste”), 264 the CC confirmed the
section’s constitutionality. In this case the applicant argued that it infringed sections
9(1) and 9(3) of the Constitution. 265 The argument was based on the contention that,
by being deprived of their common-law right to claim damages against their employers,
261 2011 (1) SA 400 (CC) para 54.

262 See Jooste v Score Supermarket Trading (Pty) Ltd 1999 (2) SA 1 (CC); MEC for Health v DN 2015
(1) SA 182 (SCA); Olivier “Social Security: Framework” in LAWSA 13(2).
263 Mankayi v Anglogold Ashanti Ltd 2011 (3) SA 237 (CC).
264 1999 (2) SA 1 (CC).
265 Section 9(1): “Everyone is equal before the law and has the right to equal protection and benefit of
the law.” Section 9(3): “The state may not unfairly discriminate directly or indirectly against anyone on
one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin,
colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.”
296
employees are placed at a disadvantage in relation to people who are not employees
and who retain that right. 266
The court found that the only issue of relevance to the equality challenge was whether
the impugned section was rationally connected to a legitimate government purpose. 267
To answer this, the CC had to consider the COIDA’s purpose. To do so, the court
highlighted the features of the common-law system which it sought to replace. To
institute a common-law claim for damages, an employee would be required to prove
negligence, which could be difficult and expensive to achieve. A further disadvantage
of the delictual route was the prospect of a proportional reduction of damages based
on the employee’s own contributory negligence. Further, if an employee instituted his
delictual claim successfully, he may not receive compensation on account of the
employer’s impecuniosity. Pursuing a remedy in this way was also expensive and
time-consuming. However, one advantage under the common-law regime was the
prospect of recovering non-patrimonial harm. 268
By way of contrast, the COIDA provides a speedy and cost-effective administrative

process through which to claim payment for patrimonial harm to the amount
established by the Act. 269 Payment of compensation is not dependent on the
employer's negligence or ability to pay, nor is the amount susceptible to reduction by
reason of the employee's contributory negligence. 270
Similar to the argument later raised in Law Society the applicant argued that the nature
of the balance achieved by the legislature through the COIDA tilts somewhat in favour
of the employer. 271 It was contended that the object of the Act is to provide
compensation for employees, not to benefit employers and that, because the abolition
of the common-law claim benefited only employers, it was not rationally related to the
purpose of the legislation. 272 The court rejected this argument because it
misconceived the rationality review as an opportunity to persuade the court that the
scheme created by the legislature could be improved, while the court was only
266 1999 (2) SA 1 (CC) para 10.

267 Para 12.
268 Para 13.
269 Para 14.
270 Para s14-15.
271 Para 16.
272 Para 16.
297
interested in determining whether the differentiation between employees and other

individuals were arbitrary or irrational. The court concluded as follows: 273
“Whether an employee ought to have retained the common-law right to claim damages, either
over and above or as an alternative to the advantages conferred by the Compensation Act,
represents a highly debatable, controversial and complex matter of policy. It involves a policy
choice which the Legislature and not a court must make. The contention represents an invitation
to this Court to make a policy choice under the guise of rationality review; an invitation which is
firmly declined. The Legislature clearly considered that it was appropriate to grant to employees
certain benefits not available at common law. The scheme is financed through contributions from
employers. No doubt for these reasons the employee's common-law right against an employer
is excluded. Section 35(1) of the Compensation Act is therefore logically and rationally connected
the legitimate purpose of the Compensation Act, namely a comprehensive regulation of
compensation for disablement caused by occupational injuries or diseases sustained or
contracted by employees in the course of their employment.”
It should be noted, however, that, while employers enjoy protection against common-
law delictual claims by their employees for harm suffered as a result of occupational
injuries and diseases, section 36(1)(a) of the COIDA provides that an employee may
recover damages from a third party who has caused an accident or occupational
disease.
The UK 2012 Scheme is intended to be the crime victim’s last resort. 274 If the victim
therefore has an opportunity to pursue compensation via other routes, he is
encouraged, although not required, to do so. 275 Briefly, the CICA does not abolish the
common-law right to claim compensation from the perpetrator. 276 The CICA states
that, where there is an opportunity for the crime victim to pursue compensation
“elsewhere”, 277 he should do so. Further, it expressly states that it “expect[s the crime
victim] to take all reasonable steps to obtain any social security benefits, insurance
payments, damages or compensation to which you may be entitled as a result of your
injuries.” 278 In fact, the CICA may require a crime victim to provide evidence that
indicates that he considered whether it was “possible to claim compensation from [the
273 Para 17.

274 CICA The UK 2012 Scheme Guide 2; see para 98(b) of the UK 2012 Scheme.
275 CICA & Ministry of Justice “Criminal Injuries Compensation: A Guide” available at
<https://www.gov.uk/guidance/criminal-injuries-compensation-a-guide> (accessed on 12 April 2017).

276 CICA The UK 2012 Scheme Guide 2; CICA and Ministry of Justice “Criminal Injuries Compensation:
A Guide”.
277 CICA & Ministry of Justice “Criminal Injuries Compensation: A Guide”.
298
perpetrator] and pursued this if there was a chance of success[,] asked [his] employer
about damages or insurance entitlements[,] and applied for all benefits to which [he]
may be entitled.” 279 Indeed, the CICA may delay making a final decision as to whether
the crime victim should receive compensation “until such times as we are satisfied that
you are eligible and you could not get compensation from any other sources.” 280
Interestingly, the UK 2012 Scheme Guide states that a victim is apparently also
entitled “to claim from someone who was indirectly responsible for your injury.” 281 More
will be said about adopting this approach in South Africa in paragraph 5.5.4 below.
Where a victim intends to claim compensation elsewhere, he is required to inform the

CICA when he applies for statutory compensation from the fund and keep the
compensation authorities updated. 282
Section 6 of the Dutch Act states that the fund may have regard to the damages a
crime victim has succeeded in recovering from a wrongdoer when making payment to
the crime victim. In its Beleidsbundel, the fund interprets section 6 of the Act as
expecting a crime victim to attempt to recover as much as possible from the
perpetrator, if the latter is known and in a position to compensate the victim. 283
However, it expressly states that it is not required to seek damages from the
wrongdoer in order to be eligible for compensation under the fund. 284

281 CICA The UK 2012 Scheme Guide 2 (own emphasis).
282 2.
284 14.
299
5.5.4 Conclusion: recommendations regarding the relationship between a

statutory compensation fund and the common law of delict
Whereas the RAF Act 285 and the COIDA 286 has abolished the victim’s common-law
right to claim damages from the wrongdoer (in the case of the COIDA, this refers to
the employer) in delict, neither the UK 2012 Scheme nor the Dutch Fund does the
same.
From the wording of the foreign statutes and accompanying policy documentation, it
appears that, although the victim is not required to institute a civil claim against the
wrongdoer before he might be considered eligible for compensation from the
respective funds, he is nonetheless strongly encouraged to do so.
It is recommended that the proposed fund, if it were to be created by the legislature,

should follow the same route as these foreign compensation schemes, i.e. it should
not abolish the common-law delictual claim against criminals. For the following
reasons, the fund should allow, but not require, crime victims to attempt obtaining
compensation from the criminal.
First, retaining the common-law claim, and appropriately reducing or withholding the
claimant’s statutory claim against the fund if the common-law claim has been instituted
successfully (see paragraph 5.6 below), would improve the financial position and
sustainability of the proposed fund.
Secondly, it requires emphasis that the scheme, if established, would to a large extent
be funded by innocent citizens’ taxes. 287 It may be recalled that the Criminal Assets
Recovery Account (“CARA”) is established under the Prevention of Organised Crime
Act 121 of 1998. However, as indicated in paragraph 2.3.3 in chapter 2, the Act does
not state that the funds in the CARA should be used to compensate crime victims and,
in fact, does not contain any reference to the compensation of crime victims. It may
further be noted that, although the POCA’s purpose is not crime victim compensation,
once the proceeds from confiscation and forfeiture orders have been paid into the
285 The RAF Act may be said to abolish the claim completely.
286 The COIDA may be said to abolish the claim only partially, with the injured or diseased employee
still entitled to institute a common-law delictual claim against a third party – i.e. someone other than the
employer – who culpably and wrongfully caused the victim’s harm.
287 See paragraph 2.3.3 in chapter 2 above.
300
CARA, it could potentially be used for the purpose of crime victim compensation if the
CARA committee were to advise Cabinet to advance the funds to a specific institution,
organisation or fund which, in turn, uses the funds to compensate certain crime
victims. However, as indicated in chapter 2, this appears not to have been the practice
up to date. Therefore, it is conceivable that the proposed scheme, if it were to be
enacted, would receive much of its funds from innocent taxpayers. Insisting on their
contributions, while denying those same tax-paying citizens an opportunity to pursue
the criminal for the remainder of the harm that may potentially not be covered by the
fund, seems indefensible.
It might be argued, as the CC did in Law Society, that retaining the common-law
delictual claim in this context does not fit within the social security framework that aims
to provide equitable compensation for all people, regardless of their financial ability. 288
The court held as follows: 289
There are two aspects to this incongruity. The first is that the common-law claim would be actually
recovered only from those drivers or owners who are capable of in fact paying compensation or
who are able to afford the required insurance. In my view, the number of drivers and owners who
would be able to pay would be very small. It would be pointless for any person to sue in
circumstances where actual recovery would not result. The second consideration is that the right
to sue would be available only to those who can afford to pay legal fees or who are granted legal
aid. And it is unlikely that legal aid would be granted to people who have claims that are in fact
irrecoverable because of the inability of the driver or owner to pay. These two factors would have
a negative effect on an equitable compensation system if the common-law right of action were to
be retained.
The first aspect highlighted by the court does very little to justify the abolition of the
common-law action in any context. Rather, the financial inability of the wrongdoer –
whether it is a culpable motorist or a criminal – may contribute towards justifying
legislative intervention via the establishment of a statutory compensation fund. As
Miers’ comparative overview of statutory compensation schemes illustrates, one of the
predominant motivations for the establishment of these schemes has been “the
commonplace fact of the offender’s limited means.” 290 Furthermore, allowing the crime
victim to institute a common-law claim in this context would not undermine the goal
behind a compensation fund; in fact, because both claims intend to compensate the
victim of harm, they arguably complement each other.
288 Para 50.

289 Para 50.
290 D Miers “Offender and state compensation for victims of crime: Two decades of development and
change” (2014) 20(1) International Review of Victimology 145 150.

301
The second consideration which the court highlighted in Law Society to justify the
abolition of common-law claims in the context of motor vehicle accidents is factually
accurate, i.e. some people in South Africa are in a position to pay for legal fees while
others are not. Again, however, this consideration – the high transaction costs
associated with civil litigation – has been used to justify statutory reform in the past
and may potentially also be used to justify the enactment of a crime victim fund, but
does very little to explain why a crime victim – who is in a position to afford legal fees
– should be denied the opportunity to pursue the criminal for compensation. Indeed,
allowing a crime victim the possibility to institute a common-law claim against the
perpetrator would reaffirm the importance of the notion of personal responsibility,
which underpins the law of delict. 291
As illustrated by the CC in its judgment in Jooste, the abolition or retention of a

common-law delictual claim may be dependent upon the question as to whether the
specific statute is rationally connected to a legitimate government purpose. 292 To make
a ruling on the issue of rationality, any court would have to consider the proposed
crime victim compensation scheme’s purpose. In this regard, it requires emphasis that
the aim of such a scheme would be the improvement of the compensatory regime
relating to crime victims. It is argued that retaining the common-law delictual claim is
rationally connected to such purpose because it improves the likelihood of
compensation in some cases. At the same time, it does so without infringing upon any
rights of the criminal. Therefore, it may be said that, if the legislature accepts as the
scheme’s purpose the improvement of the crime victim’s position insofar as
compensation goes, it would be rational and prudent to retain the victim’s common-
law delictual claim.
The CC also implied in Law Society that, in that context, “negligent motorists would
have to bear the risk of substantially increased residual claims from accident
victims” 293 if the legislature does not provide motorists with immunity. This statement
will not be analysed in further detail. However, with the eye on the establishment of a
crime victim compensation fund, it is proposed that there are no convincing policy-
291 See also paragraphs 2.2.1.3 (b) and 2.2.1.2.5 in chapter 2 as well as paragraph 4.2.4.3 in chapter
4.
292 Jooste v Score Supermarket Trading (Pty) Ltd 1999 (2) SA 1 (CC) para 12.
293 Para 49.
302
based reasons to offer immunity to the category of people who intentionally commit
crimes of violence. In fact, it is submitted that there are important public policy reasons,
as informed by constitutional rights pertaining to freedom of safety and security, that
points in exactly the opposite direction and would support the notion that, where
possible, those electing to pursue such crimes, should be held personally liable.
Expecting innocent members to make financial contributions via their taxes to the
proposed fund while offering such immunity arguably offends the moral fibre
underlying the constitutional rights to dignity as well as safety and security.
Ultimately, as the CC noted in its judgment concerning the constitutionality of section

35(1) of the COIDA, the decision as to whether the common-law right to claim
damages, either over and above or as an alternative to the advantages conferred by
legislation, represents “a highly debatable, controversial and complex matter of
policy.” 294 For the policy-based reasons outlined above, this dissertation proposes that
the proposed compensation scheme should be implemented with retention of the
common-law delictual claim for compensation. This proposal would also be in line with
approach adopted in the UK 2012 Scheme as well as the Dutch Fund, where the aim
is first and foremost on improving the position of crime victims. A final remark in this
context relates to a statement that was made regarding the UK 2012 Scheme, namely
that a victim is also entitled “to claim from someone who was indirectly responsible for
your injury.” 295 It might be argued that, if this approach were to be adopted by the
South African legislature in respect of the proposed fund, it could allow a crime victim
to hold the state, as the employer of police officers, vicariously liable for the harm
caused by the negligent and wrongful failure of its employee to prevent crime during
the course and scope of his employment. 296
This would be possible because, in the context of vicarious liability, the state, as
employer, may be regarded as being indirectly responsible for the crime victim’s injury.
Of course, if allowed, this could mean that victims of crime would continue to institute
common-law claims against the state for the harm they suffered as a result of the
wrongdoing of their employees. It is therefore conceivable that, if a similar route were
to be taken by the South African legislature, it would arguably be ineffective in
294 Para 17.

295 CICA The UK 2012 Scheme Guide 2 (own emphasis).
303
combating the widening of the state’s delictual liability. For the reasons outlined in
chapter 2, the continued expansion of state liability is, however, undesirable and
unsatisfactory from a crime victim compensation perspective.
It therefore requires emphasis that, if the legislature does elect to retain the crime
victim’s common-law right to claim damages for the harm that is not covered by the
proposed fund, then it is suggested that the victim should only be allowed to claim
from someone who was the direct cause of his injuries and not from someone who
may be regarded as being indirectly responsible for their harm. This means that the
crime victim ought to be able to hold the perpetrator liable in delict for harm not covered
under the proposed compensation scheme, but should not be allowed to institute a
delictual claim for the remainder of his harm in a vicarious liability suit against the state.
In essence, when establishing the proposed fund, the legislature should pay careful
attention to prevent the continued expansion of state delictual liability.
In summary, it is recommended that, although it should not be made a requirement for

eligibility under the proposed fund, crime victims should be encouraged and expected
to claim from the perpetrator who is directly responsible for the victim’s harm, if that
person is known to the victim and in a financial position to compensate.
5.6 Should benefits received under a statutory compensation fund be

deducted from compensation received under a residual common-law claim
of delict?
It may happen that a person who suffers harm as a result of violent crime receives
some benefit from a third party to mitigate the harm. 297 For example, a friend of the
victim may donate a sum of money to cover the cost of medical expenses incurred as
a result of the crime. 298 In this type of scenario, the question is often asked what effect,
if any, the receipt of the donation, which is characterised as a collateral benefit, should
have on the damages that the wrongdoer must pay the victim. In this section it is
considered to what extent, if any, collateral benefits should affect the quantum of
297
Neethling & Potgieter The Law of Delict 238; Loubser & Midgley (eds) The Law of Delict 408-410.
298
Neethling & Potgieter The Law of Delict 238; Loubser & Midgley (eds) The Law of Delict 408-410;
Boberg The Law of Delict 479-494, 539-540, 557-563, 603-615.
304
compensation received from the proposed statutory compensation scheme (if it were
to be enacted).
As Neethling and Potgieter explain, there are two possible ways to approach this
problem relating to collateral benefits: the law may hold the wrongdoer liable for all of
the harm he caused, or the law may hold him liable only for the harm ultimately
sustained by the victim. 299 In the case of the former, the donation of the family member
in the abovementioned example (i.e. the collateral benefit) will not be taken into
account when calculating the damages payable by the wrongdoer, which means that
the victim will ultimately be in a better financial position than he would have been if
there had been no delict because he will receive the donation as well as damages in
delict (on the assumption that the delictual claim is successful). This approach,
however, is at odds with the primary function of the law of delict, i.e. compensation of
harm (as opposed to enriching a victim of harm).
On the other hand, if the second approach is adopted and the donation received from
the family member is to be taken into account, it will mean that the victim will simply
be restored to his position prior to the delict. However, while it may be said that the
function of compensation is fulfilled, this approach also means that the wrongdoer is
not required to make good all of the harm that he has caused and that he therefore
gains from someone else’s generosity and is partly absolved from liability. 300
Loubser and Midgley state as follows: “Benefits that courts do not deduct from the
damages claim are regarded as collateral sources and therefore res inter alios acta.
This phrase literally means that something that happens between two parties does not
concern anyone else.”301 Furthermore, although it has been noted that, whether a
benefit is deducted might be dependent on the source and the nature of the benefit, 302
there appears to be “no general principle that our courts can use to decide which
benefits they should account for and which benefits they should regard as res inter
299 Neethling & Potgieter The Law of Delict 238; Loubser & Midgley (eds) The Law of Delict 408-410.
See also Potgieter, Steynberg & Floyd Law of Damages (2012) 229-273.
300 Loubser & Midgley (eds) The Law of Delict 408-410.
301 408.
302 408. See also Neethling & Potgieter The Law of Delict 239-241 for list of practical guidelines on
which benefits have been taken into account in particular circumstances in reducing the damages to
which the victim is entitled and which benefits have been regarded as res inter alios acta.
305
alios acta. South African courts deal with each benefit on a case by case basis, based
on policy considerations.” 303
Against this background, and assuming that a crime victim’s common-law right to claim
compensation from a wrongdoer is not abolished, and assuming further that the victim
successfully pursue his common-law delictual claims for recovery against a deep-
pocketed perpetrator, 304 should the compensation awarded to a crime victim from the
proposed fund be taken into account when the victim’s common-law damages is
calculated or should it be regarded as res alios inter acta? 305
It is suggested that any benefit received from the proposed compensation fund at the
stage of calculating the victim’s delictual damages should not be taken into account
when calculating the final damages awarded to a crime victim. This is because, from
a public policy perspective it is preferable that, where possible, a perpetrator should
compensate the victim of his violent crime as opposed to the compensation scheme
that is funded by innocent tax-payers. 306 For this reason, it is also strongly
recommended that the victim of crime should be obligated to notify the proposed fund
about the prospects of receiving delictual damages when he submits his initial
application for compensation to the fund. If the victim indeed receives damages in
delict, the fund should also be informed. It is therefore the proposal that, in this
scenario, the fund should be allowed a right to recover any payment that was made to
the victim and that the victim must have a corresponding duty to repay the
compensation fund the amount awarded to him under the fund. 307 The fund should
aim to ensure that, where possible, the perpetrator should compensate the victim
before the tax-funded scheme’s resources is used to do so.
If the abovementioned approach is adopted, it would also mean that the potential
double compensation of the crime victim will be avoided, while the victim’s harm would
303 410. See also Neethling & Potgieter The Law of Delict 242-243; Boberg The Law of Delict 479.
304 It may be recalled that, in paragraph 5.5.4 it was proposed that, although it should not be made a
requirement for eligibility under the proposed fund, victims should be encouraged and expected to
approach the perpetrator who is directly responsible for the victim’s harm, if that person is known to the
victim and in a position to compensate.
305 See Loubser & Midgley (eds) The Law of Delict 407-411; Potgieter et al Damages 229-270; M
Devaney “A Comparative perspective of Personal Injuries Compensation Schemes: Lessons for Tort
Reform” (2009) EJCL 1 1-9.
306 See Neethling & Potgieter The Law of Delict 243: “Questions regarding collateral benefits are
normative in nature: they have to be approached and solved in terms of policy principles and equity.”
307 See CICA The UK 2012 Scheme Guide 36.
306
be fully compensated for. This would therefore give effect to the primary goal of the
law of delict, i.e. compensation of harm (as opposed to enriching the victim or
punishing the wrongdoer), which, from a policy point of view, seems to be the most
suitable approach for the legislature to adopt.
It may further be asked what should occur where a victim first institutes a common-
law delictual claim (if it is retained) and thereafter approaches the proposed fund for
compensation. In this context, it may be noted that paragraph 85 of the UK 2012
Scheme, for example, states that an award under the scheme may be withheld or
reduced if the victim has received a payment similar to criminal injuries compensation,
damages from a civil court, money under a settlement of damages claim or where he
received a compensation order in his favour during the criminal proceedings. The
position is similar in the Netherlands. Section 6(1) of the Dutch Act states that the
Dutch Fund may take into account whether the victim has received any monies in
respect of his relevant injury (albeit from a civil claim or another source) before
payment is made to the victim in terms of the Act. 308
It is suggested that the South African legislature should adopt a similar approach in
this context. This will contribute towards the proposed scheme’s financial viability as
well as promoting the principle of personal responsibility, i.e. holding the perpetrator
responsible for the harm arising from his crime (where possible). Furthermore, to allow
the crime victim to claim compensation from the proposed fund where he has already
received compensation after successfully instituting a common-law delictual claim,
would amount to double compensation which, as indicated above, does not accord
with the aims of the proposed scheme. Indeed, this would place the crime victim in a
better position than he would have been in if there had been no delict.
In summary, it may therefore be suggested that the proposed scheme’s position

should be as follows: 309
“In general, therefore, State compensation programmes internationally are ‘payers of last resort’
in the sense that compensation will not be paid in respect of any loss or expense covered by a
collateral source such as medical insurance, pension schemes, insurance arrangements,
payments made by the offender, employer wage-continuation programmes, social security and
so on.”

307
This would mean that all benefits received by the crime victim - not only damages in
delict, but also private insurance, a pension scheme or social security - should be
taken into account when calculating the compensation awarded under the proposed
fund. This will ensure that, in line with the approach adopted under the UK 2012
Scheme, the proposed fund will be a final resort for compensation which, in turn, may
improve its financial viability.
5.7 Limitation of the victim’s claim against the compensation fund
Another practical question which the South African legislature would be confronted
with if it elects to enact a compensation scheme is whether a crime victim’s claim
against the fund should be limited to a capped amount.
Generally, statutory compensation schemes limit the victims’ claim and do not offer
compensation that is similar to what is payable under the common law. Indeed,
schemes aim “rather to contribute towards the compensation of a blameless victim,
acting as a social safety net and compensating actual loss as opposed to claims in
respect of pain and suffering. In practice therefore, state compensation is usually well
below comparable awards arising from civil claims.”310
5.7.1 South African statutes that have developed the law of delict: the RAF Act
and the COIDA
As stated in paragraph 5.5.1.1, the Road Accident Fund Amendment Act introduced a
variety of limitations on claims for patrimonial and non-patrimonial harm being
instituted against the RAF. 311 For example, the introduction of section 19(g) excludes
liability for claims for emotional shock by secondary claimants who were not actually
involved in the accident. 312 Furthermore, limitation is provided by section 17(1) of the
RAF Act, which provides that damages for non-patrimonial harm will only be
310 76.
311 See “Legal Framework of the RAF” available at <http://www.raf.co.za/About-us/pages/Legal-
framework.aspx> (accessed on 3 February 2015).
312 See Fourie v Road Accident Fund 2014 (2) SA 88 (GNP) para 36.
308
recoverable in respect of “serious injuries”. An additional significant limitation of the

RAF’s liability is provided in terms of section 17(4)(c)(i) and (ii) of the Act, which state
that, where a claim for the loss of income or a claim for loss of support is successful,
the annual loss awarded to a victim will be capped. Section 17(4A), read together with
a Board Notice issued in July 2017, limits both these claims to R262 366, with effect
from 31 July 2017. 313 Section 18(4) further limits the liability of the RAF in respect of
funeral expenses to “the necessary actual costs to cremate the deceased or to inter
him or her in a grave.” As recorded in Law Society, these limitations were introduced
to ensure the financial sustainability of the RAF. 314
Similarly, compensation awarded under the COIDA may also be less than an
employee would otherwise be entitled to in the case of a delictual claim for damages.
While the COIDA claim is based on a fixed percentage of earnings, a claim for
damages in the civil courts could include a total loss of earnings. Section 63 of the Act
contains rules as to how the compensation should be calculated.
5.7.2 The UK 2012 Scheme and the Dutch Fund
As discussed in paragraph 5.3, both compensation schemes contain set lists of

specified injuries recognised by the respective scheme as well as limited amount of
damages compensable in respect of each injury. 315
5.7.3 Conclusion: suggestions relating to the limitation of the victim’s claim

against the proposed fund
Compensation funds generally develop upper and lower limits for compensation.
Lower limits are set to prevent small or negligible claims from being instituted against
a fund, which may therefore increase the administrative workload of the fund
313 See Government Gazette (28 July 2017) No. 41013 “Adjustment of Statutory Limit in respect of
Claims for Loss of Income and Loss of Support” available at <https://archive.opengazettes.org.za/
archive/ZA/2017/government-gazette-ZA-vol-625-no-41013-dated-2017-07-28.pdf> (accessed on 28
July 2017.
314 See also “Legal Framework of the RAF” available at <http://www.raf.co.za/About-us/pages/Legal-
framework.aspx> (accessed on 3 February 2015).

315 See the UK 2012 Scheme and the HSG Letsellijst (2016).
309
administrators. Higher limits are introduced to ensure the fund’s financial viability. It is
recommended that the proposed fund should introduce both a lower and upper limit
with regards to the compensation that it will award crime victims.
It is argued that the apparent financial disadvantage to which such (upper) limitation
may expose future applicants is a necessary trade-off in order to secure a source of
funding through a relatively cost-effective and time-efficient administrative procedure.
As the comments made in Law Society and Jooste illustrate, such a goal is in line with
promoting the right to social security and it would therefore be rationally connected to
a legitimate government purpose. The financial calculation of each specific limit would
require extensive statistical analysis and falls outside the ambit of this dissertation.
5.8 Should the compensation fund require victims to prove fault?
The COIDA introduced a form of no-fault statutory liability and a victim of occupational
injuries or diseases may institute a claim regardless of the reasonableness of his
employer’s conduct in preventing the mishap. In contrast, the RAF Act, which caters
for the compensation of motor vehicle accidents, requires prospective plaintiffs to
prove fault. However, as we have seen, the legislature is intent on doing away with a
fault-based system of liability under the proposed RABS. As such, it seems as though
the major compensation funds operative within the delictual context will both be footed
on a no-fault basis. If serious about the possibility of enacting a compensation fund for
crime victims, the legislature will therefore have to consider the basis of the fund’s
liability. It might be thought that, because it has been proposed that the legislature
should consider the enactment of a compensation scheme for victims of intentionally-
committed violent crime, the scheme will be fault-based because it would require crime
victims to require fault (in the form of intention). However, as indicated elsewhere, 316
and as discussed further below, this is not the case. For the sake of completeness,
therefore, the basis of the proposed fund’s liability should be briefly considered.
316 See paragraph 4.2.2.3 in chapter 4 as well as paragraph 5.2.1.3 above.

310
5.8.1 South African statutes that have developed the law of delict: the RAF Act,
the Consumer Protection Act 68 of 2008 (“CPA”) and the COIDA
The COIDA provides compensation in respect of patrimonial harm which a victim

suffers as a result of an occupational injury of disease contracted in the course of
employment, regardless of the fault on the side of the employer. Similarly, section
61(1) of the CPA provides that producers, importers, distributors or retailers of goods
are strictly liable for any harm caused to the consumer as a consequence of (a) the
supply of unsafe goods; (b) a product failure, defect or hazard in goods; or (c)
inadequate instructions or warnings provided with goods. Although the RAF Act still
requires victims to prove fault, the proposed RABS aims to implement a no-fault based
compensation scheme. In Law Society, the Minister for Transport gave evidence that
the amendments introduced by the RAF Amendment Act of 2005 were the “first step
to greater reform”. 317 It was considered “an interim measure towards the restructuring
of the Fund's scheme into one which pays compensation on a no-fault basis.”318
The advantages which the no-fault approach may hold in this context were discussed
in chapter 3 and 4 and will not be repeated here.
5.8.2 The UK 2012 Scheme and the Dutch Fund
The majority of compensation funds that have been established for crime victims, only
compensate victims of intentionally-caused violent crimes. 319 Compensation funds for
crime victims generally require applicants to prove that they suffered harm arising from
a violent crime that was intentionally committed. The exclusion of victims of negligently
caused crimes from the scope of compensation funds is generally justified on financial
grounds and because the effects of those victims’ injuries are often covered by other
forms of social insurance. For the sake of clarity, it may therefore be said that these
compensation funds are not based on fault, because applicants are not required to
prove fault (in the form of intention), but merely to prove that their harm had arisen
from an intentionally-committed crime.
317 Para 46.

318 Para 46.
319 See the SALRC A Compensation Fund for Victims of Crime 80.
311
5.8.3 Conclusion: recommendation as to whether the proposed fund should be

a fault-based compensation scheme
On this issue, the SALRC Report is unclear. Neither of the draft bills it attached to the
report give any indication as to whether the victim is required to prove fault on the part
of the perpetrator in order to be eligible for compensation and, if so, whether
negligence or intention ought to be proven. 320 Von Bonde refers to the SALRC’s
Discussion Paper, which preceded its 2004 report, and merely proposes that a “prima
facie intentional criminal act should have occurred. This means that a successful
prosecution need not be required in all cases, for example where the perpetrator has
died.”321 The Discussion Paper, as well as the SALRC’s eventual report, however, is
not clear on the issue of whether intention is required. It merely states, in general terms
that, where intention is required,
“the notion of intentional crime should involve a wide definition of intentionality. It would be unjust
if, for instance, a claim were turned down because the injury suffered was the result of being
injured by a stray bullet fired negligently by the offender without the offender’s having formed the
specific intention to kill or injure the actual (or any) victim. The reasonable possibility of
injury/death to some person must merely have been foreseeable to qualify the victim for making
a claim [...] It is not, in general, necessary for the victim to have been the intended victim of the
act of the offender. In some cases, therefore, even the dependants of a victim of a culpable
homicide might well qualify for compensation.” 322
It is suggested that the proposed fund, if it were to be established, should follow the
approach adopted by the UK 2012 Scheme. In line with this scheme and indeed most
of the compensation schemes operative in this context, a victim is not required to prove
fault (in the form of intention), but should be required to place sufficient evidence in
front of the compensation authority to prove, on a balance of probabilities, that he is
eligible for a payment under the fund, i.e. that he suffered harm arising from an
intentionally-committed crime. This will require a victim to provide medical evidence
that supports the claim that the victim indeed obtained an injury recognised under the
fund, confirmation that the incident (an intentionally-caused violent crime) has been
reported to the police and a report from the police indicating whether the victim’s
conduct contributed to their injury. In this sense only could it be said that the proposed

312
fund scheme would take fault into account. As indicated in paragraph 4.2.2.3 in
chapter 4, from a policy perspective, this proposal may be justified on the basis that it
may be much more time-efficient and therefore also cheaper than would be the case
if the victim would be required to prove fault (in the form of intention) on the part of the
perpetrator. In turn, this promotes the crime victim’s constitutional right to access to
justice. This proposal improves the victim’s likelihood of being compensated for harm
arising from crime, and therefore serves to further the goal of enacting the proposed
fund.
5.9 Relevance of the perpetrator’s identity
In K v Minister of Safety and Security, 323 the Supreme Court of Appeal denied the
plaintiff a delictual remedy, but alluded to the possibility of legislative intervention. 324
In criticising the CC’s judgment in K, Fagan implied that it would have been more
reasonable to compel the legislature to create a statutory compensation fund for all
victims of police rapes. 325 For the reasons set out below, limiting the scope of eligibility
of a proposed fund in this manner is not recommended.
The establishment of a statutory compensation fund specifically for victims of police

rapes would obviously limit the availability of compensation from the proposed fund in
various ways. First, it would limit compensation to those instances where the
intentional infringement upon bodily integrity has occurred in a very specific way, i.e.
in the form of rape. Secondly, it would limit compensation to situations where the
victim’s intentional infringement of bodily integrity in the form of rape was perpetrated
by a specific wrongdoer, namely a police officer.
Arguably, these limitations would not be justifiable. The nature of the crime of violence
that should be compensated under the proposed fund has been discussed in
paragraph 5.2 above. With regard to the relevance of the wrongdoer’s identity, it may
be argued that, when a police officer rapes an innocent member of the public, there is
a reproachable betrayal of trust by a person tasked with the legal duty to promote
323 2005 (3) SA 179 (SCA).

324 Fagan (2009) SALJ 204.
325 Fagan (2009) SALJ 204; K v Minister of Safety and Security 2005 (3) SA 179 (SCA).
313
safety and security. The betrayal of such trust by itself, however, does not provide a
justifiable basis upon which to deny a remedy to innocent victims raped by other
categories of wrongdoers, especially considering the fact that those categories of
wrongdoers may equally consist of people in whom the victims placed their trust.
There is a further jurisprudential problem with opting to award a statutory remedy only
in the case where the wrongdoer is a member of the police: taxpayers’ monies are
allocated to the budget of the Minister of Police (previously the Minister of Safety and
Security) and indirectly employed to recompense police officers to provide safety and
security. When they breach that duty and rape innocent members of the public, the
latter will be awarded a statutory claim against a compensation fund which is likely
also to be funded with the taxpayer’s money. Awarding a statutory claim to victims of
police rapes only, thereby indirectly forcing the taxpayer to pay in respect of the
provision of safety and security of the general public, and simultaneously denying
those tax-payers who may be raped by someone other than members of the police,
seem morally indefensible.
However, considering the fact that the police may be seen as the vanguard of public
safety, it may be considered whether a victim of a crime intentionally committed by a
police officer should be awarded a higher amount of compensation. In other words,
perhaps the abuse of trust that accompanies the victim’s physical injuries should be
addressed by a higher compensation award. This could be in line with the standard of
practice under the COIDA, where the employee is allowed increased compensation if
his employer culpably caused the employee’s harm. 326
To conclude, it is suggested that the perpetrator’s identity is irrelevant for the purposes
of applying for compensation under the proposed fund.
326 See sections 56 and 66 of the COIDA.

314
5.10 Miscellaneous practical considerations to be taken into account when

enacting a statutory compensation fund for crime victims
5.10.1 The time frame for instituting a statutory claim
Most of the compensation schemes enacted in foreign jurisdictions require the

applicant to report the crime to the police and to lodge a claim within a specified period,
and also to get proper police verification of the incident or medical records. 327 Failure
to meet such deadlines may mean that an applicant’s award is reduced or withheld.
The UK 2012 Scheme generally requires an applicant to send his application to the
CICA as soon as reasonably practicable after the incident giving rise to the criminal
injury to which it relates, and within two years after the date of that incident. 328
Similarly, section 7 of the Dutch Act states that a claim for compensation must be
submitted to the Dutch Fund within ten years from the day on which the crime was
committed.
Requiring a time limit within which to bring a claim against the proposed fund would
be an administratively sound practice that would be in line with the general trend in
other foreign jurisdictions. 329 Taking into account that delictual claims must generally
be instituted within three years after the cause of action arose, and that applicants
claiming compensation from the RAF and the COIDA fund are expected to institute
their claims within specific time periods, it is proposed that victims under the scheme
as envisaged should bring their claims within three years of the date on which the
incident occurred. 330
It is proposed that crime victims should be encouraged to pursue their common-law

delictual remedies to claim compensation from the perpetrator of the crime. To prevent
prescription of a claim against the proposed fund taking effect while a common-law
claim against the perpetrator is in process, it is suggested that it be enacted as part of
the scheme that, while a debt owed by the perpetrator to the crime victim is the object
of a claim instituted by legal process by the victim against the perpetrator, an
327 See SALRC A Compensation Fund for Victims of Crime 83-84.

328 See paragraph 87 of the UK 2012 Scheme; CICA UK 2012 Scheme Guide 2.
330 See section 11(d) of the Prescription Act 68 of 1969.
315
”impediment” delaying the completion of prescription under section 13 of the

Prescription Act 68 of 1969 will operate in respect of the claim against the fund.
5.10.2 Place where the crime must have been committed
All of the criminal injuries recognised under the UK 2012 Scheme must have been
sustained as a result of a crime that occurred in “a relevant place”. 331 According to
paragraph 8 of the scheme, this means Great Britain or any other place specified in
Annexure C. Annexure C expands on this term and sets out a list of places that may
qualify for the purposes of compensation. 332 According to section 3(1) of the Dutch Act
compensation may be awarded if the intentional violent crime was committed in the
Netherlands or on board a Dutch ship or aeroplane outside the Netherlands.
It should be noted that the European Council adopted a directive in April 2004 which
required all European Union (“EU”) countries to have a compensation scheme for
victims of intentionally-caused violent crimes and established formal co-operation
between member states to ensure that victims may receive compensation, regardless
of where in the EU the crime was committed. 333 As a result, victims of intentionally-
caused violent crimes in an EU country other than the one in which they usually live
may apply for compensation in that different country. 334
As a point of departure, it is proposed that the South African legislature adopts a

strategy similar to the one adopted in the UK 2012 Scheme and stipulate clearly the
list of places that may qualify as a so-called “relevant place” for purposes of
compensation. More specifically, it is proposed that compensation should be paid only
to victims who have suffered harm as a result of intentional violent crimes that occurred
in South Africa. This would be in line with the approach adopted in the RAF Act, where
331Paragraphs 4-6, 8 of the UK 2012 Scheme.

332See paragraphs 1-3 of Annexure C of the 2012 Scheme for the entire list.
333 See European Council Directive 2004/80/EC of 29 April 2004 available at <http://eur-
lex.europa.eu/legal-content/EN/TXT/?uri=celex:32004L0080> (accessed on 11 April 2017); CICA UK

2012 Scheme Guide 5; section 18(a) of the Dutch Act.
334 See European Council Directive 2004/80/EC of 29 April 2004 available at <http://eur-

316
the RAF is only liable in respect of harm arising from motor vehicle accidents that
occurred within the borders of South Africa. 335
Because there are no directives similar to the one adopted by the EU in the African
context, it would not be possible for South Africa to enter into a comparable regional
agreement with other African jurisdictions. However, the government of South Africa
may consider approaching some or all of the countries that are signatories to the
abovementioned EU directive to determine the possibility of reaching an agreement
that could allow foreign nationals to apply for compensation under the proposed South
African compensation fund (if it were to be enacted) and allow South African citizens
to claim compensation from the various European jurisdictions’ funds. However, if this
were to be done, the legislature should ensure that such an agreement is aligned with
the residency requirements referred to in paragraph 5.10.3 below.
In the event that a prospective applicant is not in a position to satisfy the necessary
requirement, it is proposed that the fund should deny the claim and the victim would
consequently have to rely on the common law of delict to find compensation for his
harm (as proposed, the legislature should not abolish the common-law delictual
remedies for residual harm).
5.10.3 Nationality of applicant
Most foreign schemes require prospective applicants to have a connection to the

relevant jurisdiction that is more than temporary. 336 For instance, the UK 2012 Scheme
requires that potential applicants should comply with nationality and residency
requirements, which means that the victim must have been ordinarily resident in the
UK on the date of the incident while an additional condition must also have been met
335Section 17(1) of the RAF Act.

336Ministry of Justice Getting it Right for Victims and Witnesses: the Government Response 41. It should
be noted that the European Council adopted a directive in April 2004 which required all EU countries to
have a compensation scheme for victims of intentionally caused violent crimes and established formal
co-operation between member states to ensure that victims may receive compensation, regardless of
where in the EU the crime was committed. As a result, victims of intentionally caused violent crimes in
an EU country other than the one in which they usually live may apply for compensation in that different
country. See European Council Directive 2004/80/EC of 29 April 2004 available at <http://eur-
317
by the victim, e.g. the victim must have been a British citizen, “a close relative of a
British citizen”, a national of a member state of the EU or the European Economic Area
(“EEA”), a family member of an EU/EEA national who has a right to be in the UK, a
national of a State party to the Council of Europe Convention on the Compensation of
Victims of Violent Crimes, 337 a member of Her Majesty’s armed forces, or an
accompanying close relative of an armed forces member, or have been identified as
a potential victim of human trafficking or made an application for asylum to remain in
the UK on or before the day of your application for an award. 338
In contrast, the Dutch Fund merely states that if you have suffered harm as a result of
an intentionally-committed violent crime in the Netherlands, you are eligible for
compensation and therefore does not follow the same approach as the UK 2012
Scheme by setting out a list of nationality and residency requirements. 339
Therefore, it seems as though the two examined schemes do not cater only for national
citizens, but would also compensate other individuals. Whereas the Dutch Fund
seemingly allows anyone who suffers harm from a violent crime committed
intentionally in the Netherlands (assuming that the other eligibility criteria have been
met), the UK 2012 Scheme seemingly provides for a higher eligibility threshold. As a
result it is conceivable that a holiday-goer who suffers harm arising from an
intentionally-committed crime in the Netherlands will potentially be eligible for
compensation, he will not succeed with a claim under the UK 2012 Scheme unless he
also complies with one of the residency requirements.
It is proposed that, if the South African legislature decides to enact a crime victim
compensation fund, it should follow the approach adopted by the UK 2012 Scheme.
In other words, the legislature should adapt similar residency requirements as those
set out in the UK 2012 Scheme, taking into account the South African context. It is
suggested that this may contribute towards the financial sustainability of the proposed
fund, which, as pointed out above, is a practically significant consideration to take into
account.
337 CETS 116 of 1983.

338 CICA UK 2012 Scheme Guide 12-13.
339 Schadenfonds Geweldsmisdrijven “Veel gestelde vragen” available at <https://schadefonds.nl/veel-
gestelde-vragen/> (accessed on 27 June 2017).

318
5.10.4 What is practically expected of prospective applicants?
Neither the UK 2012 Scheme nor the Dutch Fund requires an applicant to prove the
existence of a violent crime in the same way that it must be proven, for example,
beyond reasonable doubt, in a criminal court. For the sake of clarity, it might be
emphasised once more that these schemes do not require a prospective applicant to
prove fault (in the form of intention) in the same way that a victim is required to do so
under the common law of delict. Instead, as indicated above, it is proposed that an
applicant should be required to place evidence in front of the fund’s authorities to make
it plausible to find that such a crime indeed occurred and that the victim did suffer the
relevant injuries for which he claims compensation. It is recommended that the
proposed fund, if enacted, adopt a similar approach. In the event that a prospective
applicant is not in a position to provide the compensation authorities with evidence
that he suffered harm arising from an intentionally-committed crime, the fund should
deny the claim and the victim would consequently have to rely on the common law of
delict to find compensation for the harm he suffered (as proposed, the legislature
should not abolish the common-law delictual claim available to the victim.)
5.11 Conclusion
The aim of this chapter was to identify practical questions which the South African
legislature should answer if it accepts the proposal to develop the law of delict by
enacting a compensation fund for crime victims. In canvassing the various matters,
attention was paid to the legislative solutions advanced to the problem of crime victim
compensation in the UK and the Netherlands. Drawing from the approaches and
solutions adopted in those jurisdictions, specific recommendations were made, which
may be summarised below.
It is suggested that the proposed fund should be established in a concise statute that
deals with salient matters, while policy documentation may be developed to provide
an interpretation of the eligibility criteria set out in the statute, the administrative
procedure by means of which compensation may be claimed, and a more detailed
319
discussion of the questions which crime victims may typically require answering. Both
of the foreign schemes examined in this chapter follow this approach, providing a
relatively brief statute which is then accompanied by more detailed policy
documentation that contains lists of the compensable injuries, the amounts claimable,
the procedures to be followed as well as a variety of related matters.
The policy documentation, produced by the compensation authority responsible for

the administration of the scheme expands on the statute and explains its working in
simple terms. In this regard, these schemes differ from the compensation schemes
set up under the COIDA and the RAF Act, which consist of a single, lengthier and
more complex statute to deal with all matters pertaining to compensation for harm
arising from motor vehicle accidents and occupational injuries and diseases.
The advantage of the approach adopted by the foreign crime victim compensation
schemes is that the statute remains simple, brief and clear, arguably making it more
accessible to members of the public. The interpretation of the statute, the eligibility
criteria, the harm compensable under the scheme, its practical mechanics and the
various questions that may be raised by injured crime victims are set out in the policy
documentation. If, for example, it is necessary to provide further information, or to set
out a new procedure to be followed, amend the list of compensable injuries or the
amounts claimable in relation to those injuries, it can easily be set out in the policy
documentation, without further statutory procedures having to be followed. Arguably,
this means that the statute continues to provide certainty about its core objectives,
while providing a degree of flexibility to the administrative body regarding its practical
functioning.
With regard to the core features of the proposed statute, it was suggested that,
generally speaking, the fund should aim to develop narrow eligibility criteria, placing
its core focus on the compensation of victims of intentionally-caused violent crimes.
Furthermore, relatives of deceased victims of crime and witnesses of such crimes
should also be compensated. As indicated above, it is not suggested that the proposed
fund should also compensate the category of risk-takers recognised by the UK 2012
Scheme.
320
In line with the compensation schemes in the UK and the Netherlands, the proposed
fund should aim to compensate both patrimonial as well as non-patrimonial harm,
provided that the fund adopts strategies to establish narrow eligibility criteria and
limitations regarding the scope of its liability. One readily achievable method to limit
the proposed fund’s liability would be to cap the amount of compensation claimable
from the fund. Indeed, this is the accepted strategy followed by foreign compensation
funds as well as the RAF and the COIDA, which statutes could assist in formulating
the necessary limitations.
It was also suggested that the crime victim’s common-law claim against the perpetrator
should not be abolished. Although not a formal eligibility requirement, the proposed
fund should clearly encourage victims to pursue this route where the perpetrator is
known and in a financial position to compensate the victim. This arrangement will be
in the financial interest of the proposed fund (by improving its sustainability) as well as
crime victims (by allowing victims to claim full compensation).
Furthermore, if a common-law claim is successful, compensation received from the

fund, should not be taken into account when calculating the perpetrator’s common-law
liability. In such a scenario, the fund should also be allowed a right to reclaim whatever
monies it has already paid over to the victim.
Of course, for reasons highlighted in chapters 3 and 4, it is unlikely that the victim
would be successful in recovering damages by means of a common-law claim against
the perpetrator and the victim would therefore in all likelihood turn towards the
proposed fund for compensation. Under these circumstances, the fund should be
entitled to take into account any other monies which the victim has received (from
sources other than a civil claim, e.g. insurance payments) at the time of application for
compensation.
Unlike the COIDA, the CPA and the RABS, the proposed fund will be fault-based
insofar as a victim will be required to provide evidence to the compensation authority
that he has suffered harm arising from an intentionally-caused violent crime. The focus
is on securing a limited amount of compensation to victims of violent crimes caused
intentionally. Victims, however, are not required to prove intention beyond reasonable
doubt in the same way that the state is required to do in a criminal trial. Rather, the
321
victim should be required to place evidence in front of the compensation authority to

allow them to reasonably conclude that an intentionally-caused violent crime was
indeed committed.
Lastly, the following remarks may be made about the nature of the statutory
development of the South African law of delict and the relationship between the
common law of delict and statutes relevant to this branch of the law.
This dissertation has examined comparable instances of large-scale reform which

occurred in the past. The proposal to potentially develop an area which falls within the
terrain covered by the law of delict has brought to the fore questions relating to the
nature of statutory reform. Writing from an Australian perspective about statutory
reform of English tort law, James Goudkamp stated as follows: 340
“The rise of legislation has profoundly affected all areas of the law in the major common law
jurisdictions. Tort law was arguably the last major stronghold of judge-made law. […]
Unsurprisingly, the extent of statutory alterations to tort law vary very considerably from
jurisdiction to jurisdiction. New Zealand famously underwent by far the most far-reaching
legislative changes […] that provided for a comprehensive accident compensation scheme. This
scheme […] leaves tort law with a relatively minor role to play. Tort law throughout Australia has
also been changed very extensively by statute. […] These changes did not go as far as those
made in New Zealand. The essence of the tort system was retained […] The United Kingdom
lacks tort reform legislation that is comparable to that which exists in Australia and New Zealand.”
The South African law of delict, like English tort law, has not experienced the same
radical reform which New Zealand underwent when it enacted a general accident
compensation scheme. In fact, no other jurisdiction has done so.
Rather than introducing comprehensive statutory reform of the law of delict, the South
African legislature’s development of this branch of the law, like its English counterpart,
has occurred on an ad hoc basis, with the major instances of statutory development
justified by legal and public policy considerations341 and enacted with the view to
solving very specific practical problems relating to the compensation of specific
categories of victims. Compared to the alternative, i.e. introducing a complete overhaul
of the law of delict via the introduction of a general accident compensation scheme in
the same way as New Zealand has done, the current approach to statutory reform
appears to be a sensible one.
340 J Goudkamp “Reforming English Tort Law: Lessons from Australia” in E Quill & RJ Friel (eds)
Damages and Compensation Culture: Comparative Perspectives (2016) 75-95 75-76.
322
This dissertation is not the first research project to consider statutory reform of the law
of delict to compensate victims of crime. It will be recalled that Von Bonde has made
the radical proposal of the creation of “a unified Compensation Scheme to compensate
victims of crime, as well as victims of traffic and industrial injuries.”342 However, for the
reasons briefly set out below, this solution cannot be supported.
Von Bonde suggests that there is an “equality argument” 343 which dictates that “victims
of crime should not be treated differently from victims of other kinds of misfortune.” 344
Of course, it may be argued that this argument is undermined by the very fact that
certain categories of victims have been singled out for preferential treatment in the
past (e.g. motor vehicle accident victims and victims of occupational injuries and
diseases are treated differently from victims of drought). However, this kind of
differentiation has been justified on the policy bases examined in chapter 3. Similarly,
if crime victims were to receive statutory compensation (either through a general
accident fund or a fund specifically enacted for this purpose), it would also be
differentiated and receive different treatment.
Furthermore, if the proposal set out in this chapter were to be accepted by a

legislature, the relative positions of crime victims and victims of motor vehicle
accidents, defective consumer products and occupational injuries and diseases would
be equal insofar as that they would all receive statutory assistance in their effort to
claim compensation. Nonetheless, there are notable differences between the different
categories of accidents which may conceivably justify a differentiated approach. In
truth, the argument could be made that the existence of tailor-made legislation that
focuses on a specific practical problem could better alleviate the plights of a specific
category of victim, which could assist in achieving equality among the various
categories of victims.
Von Bonde’s proposal is further premised on the notion that “separate compensation
schemes for various categories of victims leads to unnecessary complications when a
decision has to be made regarding the causation of a particular injury in order to direct
the claim to the appropriate fund”. 345 However, these difficulties have been statutorily
342 Von Bonde Redress for Victims of Crime in South Africa iv.
343 387.
344 387.
345 387.
323
regulated and arguably have been settled. For example, section 18 of the RAF Act
provides that, where compensation is recoverable under COIDA, the amount of this
compensation is deducted from damages that are recoverable from the RAF.
The argument that the “distinction between occupational and other injuries is obsolete
as it dates from an era when workers’ compensation was the only social insurance
and welfare programme in operation”346 does not do much to justify the radical kind of
statutory reform which Von Bonde contemplates. At any rate, it is suggested that there
may be different reasons why an innocent victim of an assault and rape attack should
be compensated when compared to the reasons for compensating someone who is
injured while performing a voluntarily elected employment duty – reasons which may
be relevant for determining, for example, the levels of compensation payable to
different categories of victims.
Von Bonde further argues that “[m]odern society should have a system of
compensation based on the financial consequences of an injury rather than its
causation” 347 and that “victims of injury have the same financial needs irrespective of
the cause of their injuries.” 348 Once again, it is suggested that there may be different
reasons for compensating a crime victim, when compared to a motor vehicle accident
victim, especially if the one has not elected to partake in any kind of risky behaviour.
The legislature may want to give effect to these reasons by catering for different
compensation tariffs, procedures and further statutory assistance provided. Von
Bonde’s argument does little to justify the wide-ranging changes which he seeks to
introduce by amalgamating the RAF and the COIDA together with a fund aimed at
compensating crime victims.
Von Bonde points out the danger of a “proliferation of benefits available to victims of
misfortune”349 which could lead to “overcompensation of some victims of misfortune
at the expense of others and the state.” 350 As indicated in this chapter, the issue of
collateral benefits will have to be dealt with in the proposed legislative scheme, in the
same way that it has been dealt with in comparable statutes. In other words, this matter
346 388.
347 388.
348 388.
349 388.
350 388.
324
may be dealt with through statutory craftsmanship and cannot justify the
comprehensive scheme which Von Bonde contemplates.
Von Bonde provides no evidence for asserting that a “single system allows for a more
equitable dispensation than a number of systems paying benefits on varying scales
from public funds.”351 In addition, his statement that a “single scheme administered by
one bureau of officials will be more cost effective to administer than separate systems
because a duplication of functions is avoided” 352 is not substantiated and therefore
cannot be used in justifying the overhaul which he proposes.
Lastly, the argument that the COIDA and the RAF are not “functioning optimally” 353
does not justify the proposal to introduce a more comprehensive scheme which will
conceivably entail much more administration and financial management, because it
would receive a larger amount of applications for compensation from a greater group
of victims.
While it may be true that the South African legislature remains the major engine for
law reform, this dissertation has argued that it would be better to enact specific
legislation that is tailor-made for the existence and extent of a particular problem (in
this case, the high levels of crime). 354 Large-scale statutory reform seems impractical
from an administrative point of view: enacting a general, unified scheme along the
lines proposed by Von Bonde would necessitate a thorough analysis regarding the
wide series of role players that are currently involved with the administration and
management of the existing compensation funds. The idea that, following such an
analysis, these entities should be realigned, given a different name and ascribed more
or less the same functions may likely result in an unwarranted waste of time, money
and effort.
The existing statutes, funds and entities that manage those funds possess a ring-
fenced expertise, specific to a particular area within the law, and it is not obvious what
the advantage would be in having them merged with an altogether different entity, with
unrelated objectives and functions.
351 388.
352 388.
353 388.
354 See also paragraph 3.2 in chapter 3 and paragraph 4.3 in chapter 4.
325
From a drafting point of view, the kind of statutory reform which Von Bonde has in
mind would require an immense effort to ensure that all of the definitions, procedures,
rights and obligations which are currently encapsulated by the various statutes would
also be included in a general statutory scheme of that nature. For example, how would
an “accident” be defined? Would it merely refer to motor vehicle accidents as well as
occupational injuries and diseases? If referring merely to both, what is the point of just
merging them into one definition? It is conceivable that there would be a multiplicity of
similar definitional problems.
Further, there are specific theoretical questions relating to each existing statute, e.g.
what is a “vehicle” for the purpose of road accident compensation under the RAF Act
and when do you act “in the course and within scope of employment” for the purposes
of occupational compensation under the COIDA? A comprehensive compensation
fund, set up by enacting a new all-encompassing statute, would in any event still be
required to provide answers to these questions. To what degree will such a statute not
merely result in a compilation of the existing COIDA and the RAF Act to answer these
questions? If so, the advantage in doing so is not clear at all.
Each of the COIDA, the RAF Act and the CPA are tailor-made statutes, informed by
context-sensitive factors and catering for specific problems. Each statute has devised
(through case law, regulation or practice) solutions for problems that arose in a specific
area (and which may very well be inherently related to a key feature within the field
that is legislated). Against this background, it is therefore argued that, rather than
introducing the radical kind of reform which occurred in New Zealand or which Von
Bonde proposes, the existing approach to statutory development of the South African
law of delict, i.e. enacting specific statutes aimed at solving particular practical
problems on an ad hoc basis, should remain the preferred approach.
326
CHAPTER 6: CONCLUSIONS
6.1 Introduction………………………………………………………………………….327
6.2 Summary of the main argument presented in this dissertation …….…………328
6.3 Concluding remarks and final recommendations………………………………..333
6.3.1 The relationship between the common law of delict and statute…….333
6.3.2 The function and role of the South African law of delict………………334
327
CHAPTER 6: CONCLUSIONS
6.1 Introduction
This dissertation has identified three main research questions for analysis. 1 To
respond to these questions, a broad range of issues relating to crime victim
compensation has been explored and a series of arguments and recommendations
has been considered. The purpose of this final chapter is to recount the factors that
provided the impetus for this research project, and to set out its main argument.
Concluding remarks will also be made concerning the relationship between the
common law of delict and related statutes as well as the function of the South African
law of delict, issues which have received some attention in passing during the course
of the dissertation.
As indicated throughout, compelling evidence exists that South Africa struggles with
exceedingly high levels of crime. 2 Quite understandably, its citizens are filled with
resentment and anger, and are deeply concerned about this problem. 3 So much so
that, when asked to identify the two most serious problems not yet resolved since 1994
in a national poll survey, 4 people identified the top two issues as crime and
unemployment. 5
As stated earlier, there are different ways to react to this problem. 6 On the one hand,
the state may introduce various policies and programmes to stem the tide and to
further crime prevention efforts. 7 Obviously, the best possible response to the high
levels of crime would be the successful implementation of these preventative
strategies and the significant reduction of existing crime rates. However, the prospects
of this happening are remote, and this makes it vital for South African law also to
respond appropriately to crime that has already taken place.

3 Minister of Safety and Security v Van der Merwe 2011 (2) SACR 301 (CC) para 35.
4 South African Institute for Race Relations Race Relations in South Africa: Reasons for Hope (2016)
2.
5 2.
7 See paragraph 1.1 in chapter 1; S v SMM 2013 (2) SACR 292 (SCA) para 14.
328
Once a crime has been committed, the South African legal system could respond in
one of the following ways. First, criminal law provides the possibility for the state to
investigate crimes, apprehend the accused individuals and prosecute them in a
criminal court. 8 Secondly, the law of delict reacts to the harm arising from crime by
providing the victim with the opportunity to obtain compensation from the perpetrator.
A crime victim interested in taking up this opportunity to claim damages from the actual
perpetrator of the crime may institute a common-law delictual claim against the latter
and would have to prove all of the elements of delictual liability on a balance of
probabilities. A further, very limited option is to make use of the procedural assistance
offered in the Criminal Procedure Act 51 of 1977.
6.2 Summary of the main argument presented in this dissertation
The point of departure for this dissertation was to evaluate the compensatory response
offered under the South African legal system to determine whether it is satisfactory
and, if not, to consider whether an alternative method exists to secure compensation
for the hundreds of thousands of South Africans who fall victim to crime each year.
Attention was first paid to the South African law of delict as the branch of the law that
takes on the compensation of harm as its primary function. 9 A crime victim who seeks
compensation through the law of delict may institute a common-law delictual claim
against the actual perpetrator if it can be proven that the latter culpably and wrongfully
caused the victim’s harm.
However, as argued in chapter 2, it may be said that the compensatory response

currently provided by the law of delict is unsatisfactory for the following reasons. First,
the actual perpetrator of the crime is most probably not in a financial position to
compensate the victim’s harm. Secondly, crime victims who seek to hold the state
vicariously liable in delict for harm arising from crime may be successful, but the
theoretical and practical consequences of expanding state delictual liability are
8 See generally JM Burchell Principles of Criminal Law 5 ed (2016); JJ Joubert, M Basdeo, T

Geldenhuys, MG Karels, GP Kemp, JP Swanepoel, SS Terblanche & SE van der Merwe The Criminal
Procedure Handbook 12 ed (2017).
329
undesirable. Thirdly, crime victims who seek to hold the state directly liable, may find
it very difficult, if not impossible, to prove systemic negligence. Lastly, for the reasons
set out in chapter 2, the compensatory mechanisms contained in the Criminal
Procedure Act do not provide an adequate statutory avenue for relief to crime victims,
while the Prevention of Crime Act 121 of 1998 focuses on the prevention and
deterrence of organised crime and not on the issue of crime victim compensation.
From the critical overview of the manner in which crime victims are currently
compensated under the South African legal system, the dissertation considered
whether there is an alternative way to award compensation to certain categories of
crime victims. One particular alternative that has been adopted in a variety of foreign
jurisdictions is the establishment of a statutory compensation fund for crime victims. 10
Funds have been adopted in the United Kingdom, a series of other European
jurisdictions, the United States of America, as well as certain Canadian territories and
Australian states. Fundamentally, these crime victim compensation schemes are
generally funded by tax-payer money and, in most cases, seek to provide easier,
quicker and more cost-efficient access to compensation instead of instituting lengthy,
expensive delictual claims as part of civil litigious proceedings.
Considering the pervasiveness and popularity of this method, the question was raised
whether the South African law of delict may be developed by the enactment of a crime
victim compensation scheme for certain categories of crime victims. Because such a
legislative step would entail a large-scale reform project, it would be necessary to
justify the basis upon which crime victims could be singled out from other groups of
unfortunates for special treatment. As indicated in chapter 1, earlier research that
relates to the establishment of a South African crime victim compensation scheme
failed to provide a justification for its creation.
Against this background, this dissertation adopted the following approach. First,
chapter three attempted to develop a theoretical framework for the future statutory
development of the South African law of delict as far as the general issue of
compensation is concerned. 11 This was done by conducting an investigation into the
policy backgrounds of arguably the three most important statutes that have developed
10 See also chapter 5.

11 See chapter 3.
330
the law of delict in the past: the Compensation for Occupational Injuries and Diseases
Act 130 of 1993 (“COIDA”), the Road Accident Fund Act 56 of 1996 (“RAF Act”), as
amended by the Road Accident Fund Amendment Act 15 of 2005 (“RAFA Act”) and
the Consumer Protection Act 68 of 2008 (“CPA”).
It was argued that these statutes share common considerations that have acted as
justifiable motivation for the legislature to intervene. First, the need to combat the
significant risk of harm arising from motor vehicle accidents, occupational injuries and
diseases and defective manufactured products as well as the accompanying risk of
receiving no compensation when the relevant risk of harm materialises. Secondly, it
was argued that, in addition to alleviating these risks, these statutes were also justified
by a related, but independent consideration, namely the promotion of the constitutional
right to social security. A third shared consideration that was identified was the need
to lessen the significant evidentiary burden provided by the common-law delictual
requirement to prove fault (specifically negligence). In some contexts it is incredibly
difficult, if not impossible, for an ordinary person to find the time, money, expertise and
information that is necessary to prove that the defendant acted unreasonably.
Further general considerations that have been used to justify earlier statutory
development of the law of delict in the past include the inordinate costs involved in
pursuing compensation along the delictual route as well as the likely under-
compensation which accompanies the latter, the convincing preference for statutory
as opposed to judicial reform (especially when it comes to a profound development
within the law), and the need to avoid arbitrary outcomes that may be the product of
claiming compensation by means of a civil trial.
The second part of the approach was to establish whether the proposed statutory
development of the law of delict could fit within the theoretical framework outlined in
chapter 3. 12 It therefore fell to be determined if the considerations justifying earlier
legislative reform could also provide a justifiable basis for the specific legislative
project proposed in this dissertation, i.e. the establishment of a statutory compensation
fund for crime victims.
12 See chapter 4.
331
Ultimately, the dissertation concludes that, similar to earlier developments, there is a

significant risk of falling victim to crime as well as an accompanying risk of receiving
no compensation where such a risk materialises. In truth, this risk of falling victim to
violent crime in South African appeared to be statistically higher than the risk of being
harmed as a result of a motor vehicle accident. It may therefore be argued that the
notion of risk of harm, and the accompanying risk of having to shoulder costs
personally if that risk materialises, operates much more forcefully in the context of
harm arising from crime.
The enactment of a statutory crime victim compensation scheme could also promote
the constitutional right to social security in ways comparable to the COIDA, securing
victims with compensation, allowing for quicker, easier and more cost-effective access
to a legal remedy, and focusing on providing a more equitable compensation
dispensation. Furthermore, it was argued that crime victims, like victims of motor
vehicle accidents, occupational injuries and diseases and defective manufactured
products are confronted with a similar evidentiary obstacle in claiming compensation
if they institute common-law delictual claims. Developing a statutory compensation
fund could contribute to alleviating this burden. It was suggested that crime victims
who wish to claim compensation from the proposed fund should not be required to
prove that the perpetrator acted negligently or had the requisite intention in the same
way that it may be required in a criminal or civil trial. Instead, victims would be required
to place sufficient evidence before the compensation authorities to prove that they
suffered harm arising from an intentionally-committed violent crime.
The dissertation also adopted the view that, as was the case with motor vehicle
accident victims, victims of occupational injuries and diseases and defective consumer
product victims prior to the enactment of the RAF Act, the COIDA and the CPA, victims
of harm arising from crime are currently required to incur excessive legal costs in
pursuing a time-consuming litigious route to compensation – which may only be an
option to crime victims if they can identify a solvent entity that may to some extent be
said to have caused their harm arising from crime. If they cannot, it is likely that the
institution of a common-law delictual claim may leave them under-compensated. High
transaction costs and potential under-compensation may therefore also act as
justifying considerations in the context of harm arising from crime.
332
Furthermore, the judicial expansion of state delictual liability provided the possibility of
arbitrary outcomes and uncertainty for future litigants (in certain cases), which may be
side-stepped by instituting a statutory crime victim compensation scheme. Lastly, it
was suggested that the establishment of a crime victim compensation fund is a fitting
example of where it is preferable to develop the law through statutory processes as
opposed to judicial reform.
Chapter 4 concluded by submitting that the proposed fund is therefore justifiable and,
when compared to the solutions offered by the current developments within the
common law of delict and existing legislation, a statutory compensation fund seems,
in principle, to be a more desirable solution to improve the legal position of crime
victims insofar as their compensation is concerned.
Whether the proposal to enact a statutory compensation scheme should ultimately be

endorsed, would depend on the fund’s practical application. Therefore, chapter 5
focused on several practical considerations which the South African legislature should
take into account if it were indeed to enact such a scheme. 13 Generally speaking, it
was proposed that the fund should aim to develop narrow eligibility criteria, placing its
core focus on the compensation of victims of intentionally-caused violent crimes.
Furthermore, relatives of deceased victims of crime and witnesses of such crimes
should also be compensated. In addition, the fund should aim to compensate both
patrimonial as well as non-patrimonial harm, provided that strategies be adopted to
establish narrow eligibility criteria and limitations regarding the scope of its liability.
One readily achievable method to limit the proposed fund’s liability would be to cap
the amount of compensation claimable from the fund.
It is further suggested that the crime victim’s common-law claim against the perpetrator
should not be abolished. It was also argued that the proposed fund should not require
the victim to prove fault on the part of the perpetrator, but merely to provide evidence
of an intentionally-caused violent crime. In other words, the victim should be required
to place evidence in front of the compensation authority to allow them to conclude that,
on a balance of probability, he suffered harm arising from an intentionally-caused
13 See chapter 5.
333
violent crime. Lastly, it was proposed that the fund’s focus should be on securing a
limited amount of compensation to victims of violent crimes caused intentionally.
6.3 Concluding remarks and final recommendations
6.3.1 The relationship between the common law of delict and statute
This dissertation has brought to the fore the relationship that exists between the
common law of delict and legislation operative within the context of compensation. It
has focused on the nature of the statutory development of the law of delict and made
several recommendations in this context. This prompts the question why the
relationship between the common law of delict and statutory law of delict has been so
under-researched.
Throughout the process of conducting research in respect of the questions identified

in chapter 1, it has become apparent that the relationship between the law of delict
and statute – which forms the backdrop for this dissertation – has not received much
attention from South African delict scholars in the past. This is perhaps similar to the
position under English law, where, as Burrows has remarked, the relationship between
common law and statute “has traditionally been woefully underexplored by
commentators.” 14
It is suggested that some of the reasons for this state of affairs which Burrows
highlights may also apply to the South African context. They include “the perception
[…] that legislation is comparatively ‘unexciting’; the sense that it is an intruder on
foundational judge-made law; […] concerns about the necessary separation of
reasoning derived from the two sources of law; appreciation that the piecemeal and
limited operation of many statutes make them ill-suited to inform debates concerning
broader legal issues; and, finally, the view that legislation is often the poorly drafted
outcome of political expediency, rather than reflective of legal principle.” 15
14 A Burrows “The relationship between common law and statute in the law of obligations” (2012) 128
Law Quarterly Review 232 232.
15 E Bant “Statute and Common Law: Interaction and Influence in Light of the Principle of Coherence”
(2015) 38(1) UNSW Law Journal 367 369.

334
This dissertation has aimed to make a contribution in this context by attempting to

provide a general theoretical framework for potential statutory reform of the law of
delict in the future and by emphasising the fact that specific instances of legislative
development of the law of delict may be justified by having regard to such a framework.
6.3.2 The function and role of the South African law of delict
This dissertation has focused on evaluating the compensatory regime relating to crime
victims, and investigating a potential alternative method to compensate crime victims,
i.e. through the establishment of a crime victim compensation scheme. In the process,
however, the role and function of the South African law of delict has received
consideration. Although a detailed and thorough analysis of this issue falls outside the
scope of this dissertation, the following remarks may be appropriate, especially with
the view to making a contribution to future research projects within this area of the law.
Compared to the attention that it receives in other jurisdictions, the function and role
of the South African law of delict is not a topic that is frequently discussed or an area
that has received much attention from legal scholars. It appears as though most
academics accept that its primary function is compensation. 16 Only one standard
textbook expressly deals with the matter and concludes that, although it may not be
the sole function of this branch of the law, it is the primary one. 17 In an authoritative
judgment on the matter, 18 the Constitutional Court (“CC”) seemingly confirmed this
position and it has not been challenged since. 19
As indicated elsewhere, this dissertation agrees with the view that the primary function
of this branch of the law is compensation. The ultimate proposal, aimed at ensuring a
more satisfactory compensatory response to crime victims than what is currently the
Africa 2 ed (2012) 8-11.
17 Loubser & Midgley (eds) (2012) 8. See the discussion of the other functions at 8-11.
18 Fose v Minister of Safety and Security 1997 (3) SA 786 (CC).
19 The CC did, however, noted, obiter, that the law of delict also has a deterrent role to play: see Loureiro
v iMvula Quality Protection (Pty) Ltd 2014 (3) SA (CC) 394 para 56.
335
case under South African law, does not undermine this position. If anything, it further
supports the focus on the effective compensation of harm, with the attention in this
case being on crime victim compensation. The proposal, nonetheless, requires a fresh
consideration of the following question: who should compensate harm?
Legal philosophers and delict/tort law scholars have identified two competing accounts
or frameworks within which that question may be answered, namely corrective justice
and distributive justice. 20
Essentially, the corrective justice account of the law of delict proposes that someone
who wrongfully and culpably injures another must make reparation to the injured party
by paying the victim compensation. 21 In other words, a corrective justice explanation
for the South African law of delict would maintain that, because it was the wrongdoer
who disturbed the existing equilibrium by culpably and wrongfully causing the victim’s
harm, he bears a duty to restore the status quo and correct his wrong, which he may
do by paying compensation to the wrongdoer.
Whereas corrective justice focuses on the injustice committed by one party and
suffered by another, distributive justice, on the other hand, deals with the distribution
of whatever is divisible among the members of a community. 22 Distributive justice
divides a benefit or burden in accordance with some criterion that compares the
relative merits of the participants. Further, where corrective justice links the victim and
wrongdoer with each other in a strictly bipolar relationship, distributive justice deals
20 H v Fetal Assessment Centre 2015 (2) SA 193 (CC) footnote 86; A Fagan “The right to personal
security” in E Reid & D Visser (eds) Private Law and Human Rights: Bringing Rights Home in Scotland
and South Africa (2013) 130-156; C Mbazira Litigating Socio-Economic Rights in South Africa: A Choice
Between Corrective and Distributive Justice (2009) 103-164; J Gardner “What is Tort Law For? Part 1.
The Place of Corrective Justice‟ (2011) 30 Law and Philosophy 1-50; J Gardner “What is Tort Law for?
Part 2. The Place of Distributive Justice” in J Oberdiek (ed) The Philosophical Foundations of the Law
of Torts (2014) 335-354; A Beever Rediscovering the Law of Negligence (2009); T Keren-Paz Torts,
Egalitarianism and Distributive Justice (2007). See also paragraph 1.1 in chapter 1, paragraph 2.1 in
chapter 2, paragraph 3.1 in chapter 3, and paragraph 4.2.4.3 in chapter 4.
21
E Weinrib The Idea of Private Law (1995); E Weinrib “Corrective Justice in a Nutshell” (2002) 52
University of Toronto Law Journal 349-356; G Fletcher “Fairness and Utility in Tort Theory” (1972) 85
Harvard Law Review 537. See also J Coleman “Corrective Justice And Wrongful Gain” (1982) 11
Journal of Legal Studies 421–40; J Coleman “Property, Wrongfulness, and the Duty to
Compensate” (1987) 63 Chicago-Kent Law Review451-70; J Coleman “The Mixed Conception Of
Corrective Justice” (1992a) 77 Iowa Law Review 427–44; J Coleman “The Practice of Corrective
Justice” in DG Owen (ed) Philosophical Foundations of Tort Law (1995).
22 See also paragraph 3.2.3.2 of chapter 3; E Weinrib The University of Toronto Law Journal 2002 354-
355.
336
with the sharing of a benefit or burden; it involves comparing the potential parties to
the distribution in terms of a distributive criterion. 23
A statutory compensation fund – which may be said to substitute the wrongdoer insofar
as it assumes responsibility for the compensation of the victim’s harm – may therefore
be regarded as an instrument aimed at achieving distributive justice rather than
corrective justice. A compensation fund does not require the person who culpably and
wrongfully caused the victim’s harm to correct his wrong, but is rather concerned with
the allocation of resources (in this case money which is paid from a tax-funded pool)
throughout society in accordance with an established set of criteria (i.e. the eligibility
criteria applicable in respect of the fund).
If it is argued that the South African law of delict is grounded in corrective justice and
that “the law cannot adequately give effect to the right to personal security unless it
achieves corrective justice in respect of bodily injuries”, 24 it would apparently follow
that a statutory compensation fund of the type that is proposed in this dissertation does
not constitute a part of the law of delict, and that compensation provided by such a
fund to crime victims would not give sufficient protection to the victim’s right to safety
and security.
In fact, if it is to be accepted that the South African law of delict aims only to achieve
corrective justice, 25 it would mean that only those instances where the wrongdoer who
culpably caused the victim’s harm and subsequently compensates the victim may be
regarded as falling within the perimeters of the law of delict. Maintaining this view
would imply that other cases, e.g. where a motor vehicle accident victim is awarded
compensation by the Road Accident Fund, cannot be viewed as forming a part of the
delictual framework.
In response to this argument, it may first be said that, [i]f corrective justice ever has a
place in law, it is here”, 26 i.e. in the law of delict. 27 The institution of common-law
delictual claims strives to achieve individualised justice between two parties, holding
23 See also paragraph 3.2.3.2 of chapter 3; E Weinrib The University of Toronto Law Journal 2002 354-
355.
24 Fagan “The right to personal security” in Private Law and Human Rights 131.
25 See 143-149.
26 Smits Introduction to Private Law 45.
27 See also Mbazira Litigating Socio-Economic Rights in South Africa 130.
337
the wrongdoer personally responsible for his wrongdoing and may continue to fulfil this
role in the future. The proposal contained in this dissertation should not be regarded
as negating this function of this branch of the law.
However, if the law of delict is characterised as aiming solely to ensure that victims
receive compensation from wrongdoers who, in the process, are said to correct
wrongs, it may be regarded as being a particularly ineffective legal instrument,
because it requires individual victims to resort to a slow, expensive justice system to
get compensated. 28 Of course, that could only occur if the victim has the necessary
means and time to institute proceedings. Where a victim is indeed in a position to do
so, and decides to institute a delictual claim, the wrongdoer may, however, turn out to
be the proverbial man of straw, leaving the wrong uncorrected and the harm where it
has fallen. Compared to this alternative, private insurance, social security and
statutory compensation are both cheaper and quicker and may therefore be
preferred. 29 Therefore, while it may be “a powerful image”30 that the law of delict is
solely concerned with achieving corrective justice, in reality, this branch of the law “is
swamped with policy questions both legislators and courts have to answer and that
are necessarily informed by considerations of distributive justice as well.” 31
Indeed, there are many potential ways to compensate a victim of harm other than
through insisting that the wrongdoer should be made to pay compensation so as to
achieve corrective justice. This realisation has convinced the South African legislature
to introduce legislation aimed at compensating motor vehicle accident victims, victims
of occupational injuries and diseases as well as those who suffer harm arising from
defective consumer products. For the reasons outlined in this dissertation, the
compensatory mechanisms created through statutory reform arguably give effect to
the right to personal security in a way that is much more efficient when compared to
the possibility of successfully instituting a common-law delictual claim for
compensation. 32
28 45. See also the arguments raised in paragraph 3.3.1 in chapter 3.

29 45. See also the arguments raised in paragraph 3.3.1 in chapter 3.
30 55.
31 55.
338
As the CC pointed out in H v Fetal Assessment Centre, 33 the distinction between

corrective and distributive justice has certainly not featured prominently in judgments
of the courts. Neither has the contention that the South African law of delict solely
focuses on promoting corrective justice. In line with the court’s statement, it is argued
that the South African law of delict seeks to compensate victims and does so through
the institution of the common law of delict (which achieves corrective justice) as well
as through statutes like the RAF Act and the COIDA (which may be seen as examples
of distributive justice). Indeed, “distributive justice and public purposes do not have to
be pursued by public law means. Private law can be, and sometimes is, used to pursue
such purposes”. 34
In conclusion, it may be said that the South African law of delict’s function remains to
compensate victims of harm. In some cases this will give rise to the institution of
common-law delictual claims which are instituted against the person who culpably and
wrongfully caused the victim’s harm. If successful, this will mean that the wrongdoer
corrects his wrong by compensating the victim.
However, given the socio-economic realities of South Africa, it is very likely that a
wrongdoer may be impecunious and unable to provide compensation. If this is the
case, as it is in the context of harm arising from crime, the law should respond. An
example of a potential response would be the statutory development of the law by way
of the enactment of a statutory crime victim compensation scheme, which may be seen
as representative of distributive justice.
It is suggested that the law of delict – which is focused on the compensation of harm
– may be regarded as being able to achieve and promote both distributive and
corrective justice. It would be important, however, to ensure that, where the legislature
elects to develop the law through statutory reform, it should be justifiable. In this
regard, this dissertation has set out a theoretical framework that may be useful for
future legislative endeavours.
332015 (2) SA 193 (CC).

34F du Bois “Private Law in the Age of Rights” in Reid and Visser (eds) Private Law and Human Rights
12-36 25.
339
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352
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• Minister of Correctional Services v Lee 2012 (3) SA 617 (SCA).
• Minister of Safety and Security v Luiters 2007 (2) SA 106 (CC).
• Minister of Safety and Security v Madyibi 2010 (2) SA 356 (SCA).
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353
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• NDPP: In re Appeal 2005 (2) SACR 610 (N).
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• NDPP v Ramlutchman 2017 (1) SACR 343 (SCA).
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• Nkisimane v Santam Insurance Co Ltd 1978 (2) SA 430 (AD).
• NM and Others v Smith and Others (Freedom of Expression Institute as Amicus

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354
• Ntombenkosi Hlomza v Minister of Safety and Security 2011 JDR 0030 (ECM).
• Nyathi v The MEC, Department of Health, Gauteng 2008 (5) SA 94 (CC).
• Olitzki Property Holdings v State Tender Board 2001 (3) SA 1247 (SCA).
• Oppelt v Department of Health, Western Cape 2016 (1) SA 325 (CC)
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• Passenger Rail Agency of South Africa v Mashongwa (2014) ZASCA 202.
• PE v Ikwezi Municipality 2016 (5) SA 114 (ECG).
• Phoebus Apollo Aviation CC v Minister of Safety and Security 2003 (2) SA 34

(CC).
• Pithey v Road Accident Fund 2014 (4) SA 112 (SCA).
• Premier, Western Cape v Faircape Property Developers (Pty) Ltd 2003 (6) SA
13 (SCA).
• Rail Commuters Action Group and Others v Transnet Ltd t/a Metrorail and
Others 2005 (2) SA 359 (CC).
• Rose’s Car Hire (Pty) Ltd v Grant 1948 (2) SA 466 (A).
• S v Dlamini 2012 (2) SACR 1 (SCA).
• S v Seedat 2017 (1) SACR 141 (SCA).
• S v Shaik 2008 (2) SACR 165 (CC).
• S v SMM 2013 (2) SACR 292 (SCA).
• Sanan v Eskom Holdings Ltd 2010 (6) SA 638 (GSJ).
• Sea Harvest Corporation (Pty) Ltd v Duncan Dock Cold Storage (Pty) Ltd 2000
(1) SA 827 (SCA).
• Shabalala v Metrorail 2008 (3) SA 142 (SCA).
• Singh v NDPP 2007 (2) SACR 326 (SCA).
• Steenkamp NO v Provincial Tender Board, Eastern Cape 2006 (3) SA 151

(SCA).
• Steenkamp NO v Provincial Tender Board, Eastern Cape 2007 (3) SA 121

(CC).
• Stewart and Another v Botha and Another 2008 (6) SA 310 (SCA).
355
• Seymour v Minister of Safety and Security 2006 (5) SA 495 (W).
• Telematrix (Pty) Ltd t/a Matrix Vehicle Tracking v Advertising Standards

Authority SA 2006 (1) SA 461 (SCA).
• Thomas v Minister of Defence and Military Veterans 2015 (1) 253 (SCA)
• Terblanche v Minister of Safety and Security 2016 (2) SA 109 (SCA)
• Van der Burg v NDPP 2012 (2) SACR 331 (CC).
• Van Eeden v Minister of Safety and Security 2003 (1) SA 389 (SCA).
• Van Zijl v Hoogenhout 2005 (2) SA 93 (SCA); Truter v Deysel 2006 (4) SA 168
(SCA).
• Victoria Falls Power Co. Ltd v Lloyd No. 1908 TS.
• Viv’s Tippers (Edms) Bpk v Pha Phama Staff Services (Edms) Bpk t/a Pha
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• Wagener v Pharmacare Ltd and Cuttings v Pharmacare Ltd 2003 (4) SA 285
(SCA).
• Waring & Gillow v Sherborne 1904 TS 340.
• Webster v Santam Insurance Co Ltd 1977 (2) SA 874 (AD).
• Workmen’s Compensation Commissioner v Norwich Union Fire Insurance

Society Ltd 1953 (2) SA 546 (AD).
England
• Cambridge Water Co v Eastern Counties Leather plc [1994] 2 AC 264.
• Donoghue v Stevenson [1932] AC 562.
• Hill v Chief Constable of West Yorkshire [1989] AC 53.
• Lister v Hesley Hall Limited [2002] 1 AC 215.
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356
• R v Criminal Injuries Compensation Board, ex p Warner [1985] 2 All ER 1069.
• R v Criminal Injuries Compensation Appeals Panel, ex p August, R v Criminal

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• Rylands v Fletcher [1868] UKHL 1.
• Wing v London General Omnibus Company [1909] 2 KB 652.
Germany
• BGH VIZR 36/55, ‘Der Betrieb’ 1956.
United States of America
• Escola v Coca-Cola Bottling Co of Fresno 24 Cal. 2d 453, 462 (1944).
• Greenman v Yuba Products 59 Cal 2d 57.
• Henningsen v Bloomfield Motors Inc. 32 N.J. 358.
Legislation
South Africa
• Apportionment of Damages Act 34 of 1956.
• Arms and Ammunition Act 75 of 1969.
• Cape Employer’s Liability Act 35 of 1886.
• Compensation for Occupational Injuries and Diseases Act 130 of 1993.
• Constitution of the Republic of South Africa, 1996.
• Consumer Protection Act 68 of 2008.
• Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of

2007.
• Criminal Procedure Act 51 of 1977.

357
• Defence Act 44 of 1957.
• Domestic Violence Act 116 of 1998.
• Government Gazette 36111 of 30 January 2013.
• Miners' Phthisis Act of 1912.
• Miners' Phthisis Act of 1916.
• Miners' Phthisis Acts Consolidation Act of 1925.
• Miners' Phthisis Allowances Act of 1911.
• Miners' Phthisis Amendment Act of 1914.
• Motor Vehicle Insurance Act 29 of 1942.
• Motor Vehicle Accident Act 84 of 1986.
• Multilateral Motor Vehicle Accidents Fund Act 93 of 1989.
• Occupational Health and Safety Act 85 of 1993.
• Occupational Diseases in Mines and Works Act 78 of 1973.
• Pneumoconiosis Act 57 of 1956.
• Pneumoconiosis Compensation Act of 1962.
• Prevention of Organised Crime Act 121 of 1998.
• Road Accident Fund Act 56 of 1996.
• Road Accident Amendment Act 15 of 2005.
• Road Accident Benefit Scheme Bill of 2014.
• Rules Board for Courts of Law Act 107 of 1985.
• Schools Act 84 of 1996.
• Silicosis Act 47 of 1946.
• South African Police Service Act 68 of 1995.
• South African Transport Services Act 9 of 1989.
• State Liability Act 20 of 1957.
• Workmen’s Compensation Act 40 of 1905 (Cape of Good Hope).

358
• Workmen’s Compensation Act 36 of 1907.
• Workmen’s Compensation (Industrial Diseases) Act 13 of 1917.
New Zealand
• Accident Compensation Act of 1972.
• Accident Compensation Act of 2001.
• Criminal Injuries Compensation Act of 1963.
• Injury, Prevention, Rehabilitation and Compensation Act of 2001.
• Sentencing Act of 2002.
England
• Consumer Protection Act of 1987.
• Civil Partnership Act of 2004.

• Criminal Injuries Compensation Act of 1995.
• Criminal Injuries Compensation Scheme of 2012.
• Fatal Accidents Act of 1976.
• Products Liability Act of 1989.
• Road Traffic Act of 1930.
• Road Traffic Act 1988.
• Road Traffic (Compensation for Accidents) Bill of 1934.
• Sale of Goods Act of 1979.
• White Paper, “Compensation of Victims of Crimes of Violence” (1964) (cmnd

2323).
359
The Netherlands
• Criminal Injuries Compensation Fund Act of 1975.
• Dutch Criminal Code.
• Dutch Road Traffic Act of 1994.
The United States of America
• Second Restatement of Torts of 1965.
Reports
• AfriMAP and the Open Society Foundation for South Africa South Africa:
Justice Sector and the Rule of Law (2005).
• Arrive Alive Motor Vehicle Accident Crash Statistics 1930 – 2000 (2000).
• Canadian Resource Center for Victims of Crime “Financial Assistance”

available at <https://crcvc.ca/for-victims/financial-assistance/> (accessed on 28
June 2017).
• Civilian Secretariat for Police White Paper on Safety and Security (2016).
• Criminal Injuries Compensation Authority UK 2012 Scheme Guide (2012).
• Community Safety Forums Policy (2011).
• Department of Justice and Constitutional Development 2015/2016 Annual

Report (2016).
• Department of Justice and Constitutional Development Annual Performance

Plan 2017/2018 (2017).
• Department of Justice and Constitutional Development Service Charter of

Victims of Crime in South Africa (1998).
• Department of Justice and Constitutional Development Criminal Asset

Recovery Account (CARA) Annual Report 2010/2011 (2011).
• Department of Social Development Early Childhood Development Policy

(2015).
• Department of Social Development Integrated Social Crime Prevention

Strategy (2011).
360
• Department of Social Development National Policy Guidelines for Victim

Empowerment (2009).
• Department of Social Development Victim Empowerment Policy (2007).
• Department of Social Development White Paper on Families (2012).
• Department of Transport Policy Paper for the RABS (2011).
• Draft Integrated Urban Development Framework (2015).
• House of Commons Committee of Public Accounts Compensating Victims of

Violent Crime 2007-2008 HC 251 (2008).
• Het Schadenfonds Geweldsmisdrijven Beleidsbundel (2017).
• Het Schadenfonds Geweldsmisdrijven Beleidsbundel (2016).
• Het Schadenfonds Geweldsmisdrijven Bijlage bij Beleidsbundel Schadefonds

Geweldsmisdrijven: dood door schuld (2016).
• Het Schadenfonds Geweldsmisdrijven Letsellijst (2016).
• Het Schadenfonds Geweldsmisdrijven Letsellijst (2015).
• Home Office Rebuilding Lives: Supporting Victims of Crime Home Office

(2005).
• International Labour Office Strengthening the Role of Employment Injury

Schemes to Help Prevent Occupational Accidents and Diseases (2013).
• International Transport Forum Road Safety Annual Report (2013).
• Independent Police Investigative Directorate Annual Report 2012/13 (2013).
• KPMG Too costly to ignore – the economic impact of gender-based violence in

South Africa (2014).
• Law Society of South Africa Statistics for Legal Education and Development
(LEAD) and the Legal Profession (2014/2015) (2015).
• Jackson Report: Review of Civil Litigation Costs (2010).
• McGills D & P Smith United States Department of Justice: Compensating

Victims of Crime – An Analysis of American Programs (1983).
• Ministry of Justice Getting it Right for Victims and Witnesses (2012).
• Ministry of Justice Getting it Right for Victims and Witnesses: the Government
Response (2012).
• National Center for Victims of Crime Repairing the Harm (2004).

361
• National Defence Force National Security Strategy (2012).
• National Director of Public Prosecutions Annual Report 2015/2016 (2016).
• National Planning Commission National Development Plan (2011).
• New Zealand Law Commission Report (2008): Compensating Crime Victims.
• Pew Research Center Health Care, Education Are Top Priorities in Sub-
Saharan Africa (2015).
• Proceedings of the Extended Public Committee Debates of Parliament 1993-

1994 (1994) 12305.
• Road Accident Fund Commission Report of the Road Accident Fund

Commission (2002).
• Road Traffic Management Corporation The Costs of Crashes in South Africa

(2016).
• Royal Commission on Civil Liability and Compensation for Personal Injury

Pearson Report (1978).
• SAPS Annual Crime Report 2015/2016: Addendum to the SAPS Annual Report
2015/2016 (2016).
• SAPS Rural Safety Strategy (2010).
• Scottish Government Social Research No-Fault Compensation Schemes for

Medical Injury: A Review (2010).
• Select Committee of the House of Assembly Report of the Select Committee

on Compensation to Workmen (1904).
• South African Law Reform Commission Project 82: A Compensation Fund for
Victims of Crime Report (2004).
• South African Institute for Race Relations Race Relations in South Africa:
Reasons for Hope (2016).
• United States Agency International Development Worker’s Compensation in

the Republic of South Africa (2008)
Online resources
• Africa Check “Factsheet: South Africa’s 2015/2016 crime statistics” available at

<https://africa check.org/factsheets/factsheet- south-africas-201516-crime-
statistics/>
362
• Africa Check “Factsheet: South Africa’s 2014/2015 murder and robbery crime
statistics” available at <https://africacheck.org/factsheets/factsheet-south-
africas-201415-murder-and-robbery-crime-statistics/>
• Africa Check “Rape Statistics in South Africa: A Guide” available at

<https://africacheck.org/ factsheets/guide-rape-statistics-in-south-africa/>
• Canadian Resource Center for Victims of Crime “Financial Assistance”

available at <https://crcvc.ca/for-victims/financial-assistance/>
• Inflation Calculation “Inflation Calculation” available at

<http://www.inflationcalc.co.za/>
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1

Developing the South African law of delict: the creation of a statutory

Albertus Bernardus Wessels

Supervisors: Professor Max Loubser and Professor Jacques du Plessis

Albertus Bernardus Wessels

Copyright © 2018 Stellenbosch University

All rights reserved

Within this framework the dissertation considers whether there is an alternative

The dissertation thereafter examines whether the establishment of a statutory crime

To be successful, the proposed statutory compensation scheme must be theoretically

Binne hierdie raamwerk word dit oorweeg of daar ŉ alternatiewe metode is om

Die verhandeling ondersoek dan of die vestiging van ŉ statutêre

Ten einde suksesvol te wees, moet die voorgestelde statutêre vergoedingskema

I would like to express my sincere thanks and appreciation to my supervisors,

2. A DESCRIPTION AND EVALUATION OF THE CURRENT

SOUTH AFRICAN LEGAL POSITION REGARDING THE

COMPENSATION OF HARM SUFFERED BY CRIME VICTIMS …………..31

3. LEGAL AND PUBLIC POLICY CONSIDERATIONS

4. JUSTIFYING THE LEGISLATIVE DEVELOPMENT OF

5. PRACTICAL CONSIDERATIONS THAT ARE RELEVANT

1.2 The need for crime victim compensation…………………………………………..13

1.5 Investigating alternative methods to secure crime victim compensation……….19

1.6 Research questions………………………………………………………………….21

1.7 Relevance of the research questions………………………………………………22

1.8 Differences between this dissertation and earlier research on the

establishment of a statutory compensation fund for crime

victims in South Africa……………………………………………………………….24

1.9 Structure of this dissertation

1.9.1 Chapter 2: A description and evaluation of the current South

African legal position regarding the compensation of harm

suffered by crime victims…………………………………………………….26

1.9.2 Chapter 3: Legal and public policy considerations that justify

legislative development of the law of delict ……………………………….27

1.9.3 Chapter 4: Justifying the legislative development of the law of delict

by establishing a statutory compensation fund for crime victims ………..28

1.9.4 Chapter 5: Practical considerations that are relevant when developing

a statutory compensation fund for crime victims…………………………..29

1.9.5 Chapter 6: Conclusions……………………………………………………...29

1 See paragraph 4.2.3.1 in chapter 4.

National Planning Commission National Development Plan (2011).

15 See JM Burchell Principles of Criminal Law 5 ed (2016) 1-136.

1.2 The need for crime victim compensation

complainants can remove themselves from abusive environments, or increase their

In S v Seedat, 29 the appellant was convicted of raping the 58-year-old complainant, to

“Prosecutor: What sentence should be imposed on the accused?

the necessary elements of delictual liability, i.e. harm, conduct, causation,

for Victims of Crime) (2004) 74.

change” (2014) 20(1) International Review of Victimology 145 150.

46 The reasoning in this case will be evaluated in paragraph 2.2.1.2.4 in chapter 2.

implications of this development.

52 See also P Atiyah The Damages Lottery (1996) 80-81.

1.5 Investigating alternative methods to secure crime victim compensation

60 P Cane Atiyah’s Accidents, Compensation and the Law 8 ed (2013) 303-308.

Review 281; Cane Atiyah’s Accidents (2013) 303-308.

1.6 Research questions

1. What is the nature of the current statutory and common-law compensatory

2. Assuming that crime victim compensation under South African law is

3. If the statutory development of the law of delict through the enactment of a

1.7 Relevance of the research questions

63 SALRC A Compensation Fund for Victims of Crime 10.

Despite the SALRC’s financially-motivated opposition to the creation of a fund, it

The SALRC’s rejection of the proposal to establish a statutory crime victim

responsibility of proposing a crime victim compensation scheme. The further

1.8 Differences between this dissertation and earlier research on the